Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributed, directly or indirectly, to Parent unless and until the Offer Closing and/or Merger Closing occurs. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery against the Guarantor or any of its Affiliates or any former, current or future, direct or indirect director, officer, employee, agent or Affiliate of any of the foregoing, any former, current or future, direct or indirect holder of any equity interests or securities of the foregoing (whether such holder is a limited or general partner, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, securityholder, Affiliate, controlling Person or Representative or assignee of any of the foregoing other than Parent, Purchaser or their assignees under the Merger Agreement (any such Person or entity, other than the Guarantor, Parent or Purchaser or their assignees under the Merger Agreement, a “Related Person”), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent against the Guarantor or any Related Person, or otherwise, except for its rights against the Guarantor under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its specific rights to enforce the Equity Commitment Letter of the Guarantor dated as of the date hereof (the “Equity Commitment Letter”). Recourse against the Guarantor under this Limited Guarantee and, if the Company is entitled to specific performance pursuant to Section 8.7(b) of the Merger Agreement, the Equity Commitment Letter shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and all of its Affiliates against the Guarantor and any Related Person in respect of any breach, loss or damage arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby (other than any remedies available pursuant to the terms of the Equity Commitment Letter), including if Parent and Purchaser fail to effect the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach the Merger Agreement (except for claims based on Fraud). The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any Legal Proceeding or bring any other claim arising under, or in connection with, the Offer, the Merger, the Merger Agreement or the transactions contemplated thereby, against the Guarantor or any Related Person, except for claims of the Guaranteed Party against the Guarantor under this Limited Guarantee and claims pursuant to the terms of the Equity Commitment Letter subject to the limitations contained therein and in the Merger Agreement. Without prejudice to any right to specific performance that the Guaranteed Party may have under the Equity Commitment Letter or Section 8.7 of the Merger Agreement and, except as contemplated in Section 1 hereof, the Guaranteed Party further covenants and agrees that it shall not have the right to recover, and shall not recover, and it shall not institute, directly or indirectly, and shall cause its Affiliates not to institute, any Legal Proceeding or bring any other claim to recover, more than the Maximum Amount from the Guarantor and its permitted assignees in respect of any liabilities or obligations of the Guarantor, Parent or Purchaser arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby, and the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries or Affiliates pursuant this Limited Guarantee which are in excess of Maximum Amount. Nothing set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein. The Guaranteed Party acknowledges that the Guarantor is agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited Guarantee.
Appears in 1 contract
Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributed, directly or indirectly, contributed to Parent unless and until the Offer Closing and/or Merger Closing occursAcceptance Time. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery against the Guarantor or any of its Affiliates or the Guarantors, any former, current or future, direct or indirect director, manager, officer, employee, agent agent, financing source or Affiliate of any of the foregoingGuarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the foregoing Guarantors (whether such holder is a limited or general partner, manager, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or Guarantors, any former, current or future director, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or Representative representative or assignee of any of the foregoing, or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing other than Parent, Purchaser or their successors and assignees under the Merger Agreement (any such Person person or entity, other than the Guarantorundersigned, Parent or Parent, Purchaser or their successors and assignees under the Merger Agreement, a “Related Person”), through Parent Parent, Purchaser or otherwise, . The Guaranteed Party acknowledges and agrees that the limitation set forth in the preceding sentence applies without regard to whether any claim is asserted by or through attempted piercing of attempting to ▇▇▇▇▇▇ the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent or Purchaser against any of the Guarantor Guarantors or any Related PersonPerson of any Guarantor, or otherwise. The foregoing limitation shall not apply, except for its however, to: (a) rights and claims against any counterparty to the Confidentiality Agreement (or a joinder thereto); (b) rights and claims against Parent or Purchaser under or relating to the Merger Agreement (including in respect of Fraud); or (c) rights and claims against the Guarantor Guarantors and their successors and assigns (i) under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof of this Limited Guarantee, (ii) to (A) an injunction or injunctions, specific performance or other equitable remedies to prevent breaches of the Equity Financing Commitment or to enforce specifically the terms and its specific rights provisions of the Equity Financing Commitment pursuant to, and subject to the limitations, thereof and Section 9.5(c) of the Merger Agreement and or (B) to enforce the Guaranteed Party’s rights to consent to certain matters as expressly provided under the Equity Financing Commitment Letter of the Guarantor dated as of the date hereof (the each, a “Equity Commitment LetterPermitted Claim”). Recourse Except for the Permitted Claims, recourse against the Guarantor Guarantors under this Limited Guarantee and, if the Company is entitled to specific performance pursuant to Section 8.7(b) of the Merger Agreement, the Equity Commitment Letter shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and its shareholders and all of its their respective Affiliates against the Guarantor Guarantors and any Related Person of any Guarantor in respect of any breach, loss or damage arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby (other than any remedies available pursuant to the terms of the Equity Commitment Letter), including if Parent and Purchaser fail to effect the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach the Merger Agreement (except for claims based on Fraud)thereby. The Guaranteed Party hereby covenants and agrees that neither it nor its shareholders shall not institute, and shall cause its their respective Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim arising under, or in connection with, the Offer, the Merger, the Merger Agreement or the transactions contemplated thereby, against the Guarantor Guarantors or any Related PersonPerson of any Guarantor, except for claims any Permitted Claims. Notwithstanding the foregoing, if any Guarantor (x) consolidates with or merges with any other Person and is not the continuing or surviving entity of such consolidation or merger or (y) transfers or conveys all or a substantial portion of its properties and other assets to any person such that the Guaranteed Party against sum of such Guarantor’s remaining net assets plus its uncalled capital, plus available funds is less than the Maximum Guarantor under this Limited Guarantee and claims pursuant to the terms of the Equity Commitment Letter subject to the limitations contained therein Amount, then, and in the Merger Agreement. Without prejudice to any right to specific performance that each such case, the Guaranteed Party may have under seek recourse against such continuing or surviving entity or such Person, as the Equity Commitment Letter or Section 8.7 case may be, but only to the extent of the Merger Agreement andunpaid liability of such Guarantor hereunder up to the amount of the Guaranteed Obligations for which such Guarantor is liable, except as contemplated determined in Section 1 hereofaccordance with this Limited Guarantee. Without limitation, such recourse may be by: (1) the enforcement of any judgment or assessment; (2) any legal or equitable proceeding; or (3) virtue of any applicable law. Other than in respect of Permitted Claims, the Guaranteed Party further covenants and agrees that that: (I) neither it nor its shareholders shall not have the right to recover, and shall not recover, and neither it nor its shareholders shall not institute, directly or indirectly, and shall cause its their respective Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim to recover, more than the Maximum Amount in the aggregate from the Guarantors or the Maximum Guarantor and its Amount from any Guarantor, their permitted assignees and Parent or Purchaser in respect of any liabilities or obligations of the GuarantorGuarantors, Parent or Purchaser arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby, ; and (II) the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries or Affiliates pursuant this Limited Guarantee which are in excess of Maximum Amountsuch liabilities or obligations. Nothing set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the GuarantorGuarantors, except as expressly set forth hereinin this Limited Guarantee. The Guaranteed Party acknowledges that the Guarantor is Guarantors are agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited Guarantee.
Appears in 1 contract
Sole Remedies. The Guaranteed Party acknowledges and agrees that that, other than the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributedPermitted Claims, directly or indirectly, to Parent unless and until the Offer Closing and/or Merger Closing occurs. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery arising out of, relating to or in connection with the transactions contemplated by the Merger Agreement, the Company Disclosure Schedule, the Equity Commitment Letter, the Voting Agreement or the Confidentiality Agreement or arising out of the Merger Agreement, the Company Disclosure Schedule, the Equity Commitment Letter, the Voting Agreement or the Confidentiality Agreement, against the Guarantor or any of its Affiliates or Guarantor, any former, current or future, direct or indirect director, manager, officer, employee, agent agent, financing source or Affiliate of any of the foregoingGuarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the foregoing Guarantor (whether such holder is a limited or general partner, manager, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or Guarantor, any former, current or future director, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or Representative representative or assignee of any of the foregoing foregoing, or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing, other than Parent, Purchaser Merger Sub or their successors and assignees under the Merger Agreement (any such Person person or entity, other than the Guarantor, Parent or Purchaser Parent, Merger Sub or their successors and assignees under the Equity Commitment Letter, this Limited Guaranty or the Merger Agreement, a “Related Person”), through Parent Parent, Merger Sub or otherwise, . The Guaranteed Party acknowledges and agrees that the limitation set forth in the preceding sentence applies without regard to whether any claim is asserted by or through attempted piercing of attempting to ▇▇▇▇▇▇ the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent or Merger Sub against the Guarantor or any Related PersonPerson of the Guarantor, or otherwise. The foregoing limitation shall not apply, except for its however, to: (a) rights and Claims against any party to the Confidentiality Agreement (and any joinder thereto) or the Voting Agreement pursuant to the terms thereof and subject to the limitations set forth therein; (b) rights and Claims against Parent or Merger Sub under the Merger Agreement pursuant to the terms thereof and subject to the limitations set forth therein; (c) rights and Claims against the Guarantor and its successors and permitted assigns (i) under this Limited Guarantee and Guaranty pursuant to the terms and subject to the conditions hereof and its limitations of this Limited Guaranty, (ii) to (A) an injunction or injunctions, specific rights performance or other equitable remedies to enforce prevent breaches of the Equity Commitment Letter or to enforce specifically the terms and provisions of the Guarantor dated as Equity Commitment Letter pursuant to the terms thereof and subject to the limitations set forth therein, and to Section 8.02 (Effect of Termination; Termination Fees), Section 9.10 (Specific Enforcement) and Section 9.15 (No Recourse Against Nonparty Affiliates) of the date hereof Merger Agreement and/or (B) to enforce the “Guaranteed Party’s rights to consent to certain matters as expressly provided under the Equity Commitment LetterLetter pursuant to the terms thereof and subject to the limitations set forth therein (each of clauses (a) through (c), a “Permitted Claim”). Recourse Except for the Permitted Claims, recourse against the Guarantor under this Limited Guarantee and, if the Company is entitled to specific performance pursuant to Section 8.7(b) of the Merger Agreement, the Equity Commitment Letter Guaranty shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and its shareholders and all of its their respective Affiliates against the Guarantor and any Related Person of the Guarantor in respect of any breach, loss or damage arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby (other than any remedies available pursuant to the terms of the Equity Commitment Letter), including if Parent and Purchaser fail to effect the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach the Merger Agreement (except for claims based on Fraud)thereby. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim arising under, or in connection with, the Offer, the Merger, the Merger Agreement or the transactions contemplated thereby, or the ownership of Company Common Stock by the Guarantor or any of its Related Persons, against the Guarantor or any Related PersonPerson of the Guarantor, except for claims any Permitted Claims. Notwithstanding the foregoing, if the Guarantor (x) consolidates with or merges with any other Person and is not the continuing or surviving entity of such consolidation or merger or (y) transfers or conveys all or a substantial portion of its properties and other assets to any Person such that the sum of the Guaranteed Party against Guarantor’s remaining net assets, plus available funds is less than the Guarantor under this Limited Guarantee and claims pursuant to the terms of the Equity Commitment Letter subject to the limitations contained therein Maximum Amount, then, and in the Merger Agreement. Without prejudice to any right to specific performance that each such case, the Guaranteed Party may have under seek recourse, whether by enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any applicable Law, against such continuing or surviving entity or such Person, as the Equity Commitment Letter or Section 8.7 case may be, but only to the extent of the Merger Agreement and, except as contemplated unpaid liability of the Guarantor hereunder up to the Maximum Amount. Other than in Section 1 hereofrespect of Permitted Claims, the Guaranteed Party further covenants and agrees that that: (I) neither it nor its shareholders shall not have the right to recover, and shall not recover, and it shall not institute, directly or indirectly, and shall cause its controlled Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim to recover, recover more than the Maximum Amount in the aggregate from the Guarantor and Guarantor, its permitted assignees and Parent or Merger Sub in respect of any liabilities or obligations of the Guarantor, Parent or Purchaser Merger Sub arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee Guaranty or the transactions contemplated hereby or thereby, ; and (II) the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries by or Affiliates pursuant this Limited Guarantee which are on behalf of Guarantor, Parent or Merger Sub in excess of Maximum Amountsuch liabilities or obligations. Nothing set forth in this Limited Guarantee Guaranty shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth hereinin this Limited Guaranty. The Guaranteed Party acknowledges that the Guarantor is agreeing to enter into this Limited Guarantee Guaranty in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited GuaranteeGuaranty. No failure on the part of the Guaranteed Party 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 any Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder. Each and every right, remedy and power hereby granted to the Guaranteed Party shall be cumulative and not exclusive of any other right, remedy or power. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against, Parent, Merger Sub or any other Person prior to proceeding against the Guarantor hereunder.
Appears in 1 contract
Sources: Limited Guaranty (W R Grace & Co)
Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributed, directly or indirectly, to Parent unless and until the Offer Closing and/or Merger Closing occurs. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery against the Guarantor or any of its Affiliates or the Guarantors, any former, current or future, direct or indirect director, manager, officer, employee, agent agent, financing source or Affiliate of any of the foregoingGuarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the foregoing Guarantors (whether such holder is a limited or general partner, manager, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or Guarantors, any former, current or future director, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or Representative representative or assignee of any of the foregoing, or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing other than Parent, Purchaser Merger Sub or their successors and assignees under the Merger Agreement (any such Person person or entity, other than the Guarantorundersigned, Parent or Purchaser Parent, Merger Sub, the Debt Financing Borrower or their successors and assignees under the Merger Agreement, a “Related Person”), through Parent Parent, Merger Sub, the Debt Financing Borrower or otherwise, . The Guaranteed Party acknowledges and agrees that the limitation set forth in the preceding sentence applies without regard to whether any claim is asserted by or through attempted piercing of attempting to ▇▇▇▇▇▇ the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent or Merger Sub against any of the Guarantor Guarantors or any Related PersonPerson of any Guarantor, or otherwise. The foregoing limitation shall not apply, except for its however, to: (a) rights and claims against any counterparty to the Confidentiality Agreement (or a joinder thereto) ; (b) rights and claims against Parent, Merger Sub or the Debt Financing Borrower under or relating to the Merger Agreement (including in respect of fraud), subject to the limitations set forth therein; or (c) rights and claims against the Guarantor Guarantors and their successors and assigns (i) under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its of this Limited Guarantee, (ii) to (A) an injunction or injunctions, specific rights performance or other equitable remedies to enforce prevent breaches of the Equity Commitment Letter or to enforce specifically the terms and provisions of the Guarantor dated as Equity Commitment Letter pursuant to, and subject to the limitations, thereof, and to Section 9.12 and Section 9.15 of the date hereof Merger Agreement and or (B) to enforce the “Guaranteed Party’s rights to consent to certain matters as expressly provided under the Equity Commitment LetterLetter (each, a “Permitted Claim”). Recourse Except for the Permitted Claims, recourse against the Guarantor Guarantors under this Limited Guarantee and, if the Company is entitled to specific performance pursuant to Section 8.7(b) of the Merger Agreement, the Equity Commitment Letter shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and its shareholders and all of its their respective Affiliates against the Guarantor Guarantors and any Related Person of any Guarantor in respect of any breach, loss or damage arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby (other than any remedies available pursuant to the terms of the Equity Commitment Letter), including if Parent and Purchaser fail to effect the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach the Merger Agreement (except for claims based on Fraud)thereby. The Guaranteed Party hereby covenants and agrees that neither it nor its shareholders shall not institute, and shall cause its their respective Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim arising under, or in connection with, the Offer, the Merger, the Merger Agreement or the transactions Transactions contemplated thereby, against the Guarantor Guarantors or any Related PersonPerson of any Guarantor, except for claims any Permitted Claims. Notwithstanding the foregoing, if any Guarantor (x) consolidates with or merges with any other Person and is not the continuing or surviving entity of such consolidation or merger or (y) transfers or conveys all or a substantial portion of its properties and other assets to any person such that the Guaranteed Party against sum of such Guarantor’s remaining net assets plus its uncalled capital, plus available funds is less than the Maximum Guarantor under this Limited Guarantee and claims pursuant to the terms of the Equity Commitment Letter subject to the limitations contained therein Amount, then, and in the Merger Agreement. Without prejudice to any right to specific performance that each such case, the Guaranteed Party may have under seek recourse against such continuing or surviving entity or such Person, as the Equity Commitment Letter or Section 8.7 case may be, but only to the extent of the Merger Agreement andunpaid liability of such Guarantor hereunder up to the amount of the Guaranteed Obligations for which such Guarantor is liable, except as contemplated determined in Section 1 hereofaccordance with this Limited Guarantee. Other than in respect of Permitted Claims, the Guaranteed Party further covenants and agrees that that: (I) neither it nor its shareholders shall not have the right to recover, and shall not recover, and neither it nor its shareholders shall not institute, directly or indirectly, and shall cause its their respective Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim to recover, more than the Maximum Amount in the aggregate from the Guarantors or the Maximum Guarantor and its Amount from any Guarantor, their permitted assignees and Parent or Merger Sub in respect of any liabilities or obligations of the GuarantorGuarantors, Parent or Purchaser Merger Sub arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby, ; and (II) the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries or Affiliates pursuant this Limited Guarantee which are in excess of Maximum Amountsuch liabilities or obligations. Nothing set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the GuarantorGuarantors, except as expressly set forth hereinin this Limited Guarantee. The Guaranteed Party acknowledges that the Guarantor is Guarantors are agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited Guarantee.
Appears in 1 contract
Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributed, directly or indirectly, contributed to Parent unless and until the Offer Closing and/or Merger Closing occurs. No Guarantor shall have any obligation or liability to any Person relating to, arising out of or in connection with the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter or the transactions contemplated thereby other than as expressly set forth herein and therein. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery against the Guarantor or any of its Affiliates or the Guarantors, any former, current or future assignee of any of the Guarantors or any current or future, direct or indirect director, partner, principal, officer, employee, agent agent, or other financing source, Representative or Affiliate of any of the foregoingGuarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the foregoing Guarantors (whether such holder is a limited or general partner, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or any formerdirector, current or future directorpartner, principal, officer, employee, agent, general or limited partner, manager, member, stockholder, securityholder, Affiliate, controlling Person or other financing source, Representative or assignee of any of the foregoing other than permitted assignees of the Guarantors, and Parent, Purchaser Merger Subsidiary or their permitted assignees under the Merger Agreement (any such Person person or entity, other than (x) the Guarantorundersigned and their permitted assignees hereunder or (y) Parent, Parent or Purchaser Merger Subsidiary or their permitted assignees under the Merger Agreement, a “Guarantor Related Person”), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent against the Guarantor Guarantors or any Guarantor Related Person, or otherwise, except for its rights against the Guarantor entities that are expressly identified as parties hereto under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its specific rights to enforce in connection with the enforcement of the Equity Commitment Letter (pursuant to and subject to Section 5 thereof) and the enforcement of its rights set forth in Sections 8.3(f)(i) and 9.11(e) of the Guarantor dated as of the date hereof (the “Equity Commitment Letter”)Merger Agreement. Recourse against the Guarantor entities that are expressly identified as parties hereto under this Limited Guarantee and, if the Company is entitled to specific performance pursuant to Section 8.7(b) of the Merger Agreement, the Equity Commitment Letter shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and all of its Affiliates against the Guarantor Guarantors and any Guarantor Related Person in respect of any breach, loss or damage arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby (including in respect of any oral representations made or alleged to be made in connection therewith), other than any remedies available to the Guaranteed Party pursuant to the terms of the Equity Commitment Letter), including if Parent Letter (pursuant to and Purchaser fail subject to effect Section 5 thereof) and under the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach terms set forth in the Merger Agreement (except for claims based on Fraud)Agreement. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the OfferMerger Agreement, the Merger, the Merger Agreement Equity Commitment Letter or the transactions contemplated thereby, or in respect of any oral representations made or alleged to be made in connection herewith, against any of the Guarantor Guarantors or any Guarantor Related Person, except for claims of the Guaranteed Party against the Guarantor entities that are expressly identified as parties hereto (and their permitted assignees) under this Limited Guarantee and claims permitted pursuant to the terms of the Equity Commitment Letter (subject to Section 5 thereof) and the limitations contained therein terms set forth in Sections 8.3(f)(i) and in 9.11(e) of the Merger Agreement. Without prejudice to any right to specific performance that the Guaranteed Party may have under the Merger Agreement or the Equity Commitment Letter or (including the right to cause the Guarantors to fund the Equity Financing, as permitted under Section 8.7 9.11 of the Merger Agreement andAgreement, except as contemplated or rights set forth in Section 1 hereof8.3(f)(i) of the Merger Agreement), the Guaranteed Party further covenants and agrees that it shall not have the right to recover, and shall not recover, and it shall not institute, directly or indirectly, and shall cause its controlled Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim to recover, more than the Maximum Aggregate Amount in aggregate from the Guarantor entities that are expressly identified as parties hereto, their permitted assignees and Parent or the applicable Maximum Guarantor Amount from each Guarantor entity that is expressly identified as a party hereto and its permitted assignees in respect of any liabilities or obligations of the GuarantorGuarantors, Parent or Purchaser Merger Subsidiary arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby, and the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries or controlled Affiliates pursuant this Limited Guarantee which are in excess of Maximum Amountsuch liabilities or obligations. Nothing set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the GuarantorGuarantors, except as expressly set forth herein. The Guaranteed Party acknowledges that the each Guarantor is agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited Guarantee.
Appears in 1 contract
Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributed, directly or indirectly, contributed to Parent (other than any Expenses Amount (as defined in the Equity Funding Letter)) unless and until the Offer Closing and/or Merger Closing Acceptance Time occurs. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery against the Guarantor or any of its Affiliates or the Guarantors, any former, current or future, direct or indirect director, manager, officer, employee, agent agent, financing source or Affiliate of any of the foregoingGuarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the foregoing Guarantors (whether such holder is a limited or general partner, manager, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or Guarantors, any former, current or future director, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or Representative representative or assignee of any of the foregoing, or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing other than ParentParent or Merger Sub, Purchaser or their its successors and assignees under the Merger Agreement (any such Person person or entity, other than the Guarantorundersigned, Parent or Purchaser Parent, Merger Sub, or their assignees under the Merger Agreementsuccessors and assigns, a “Related Person”), through Parent Parent, Merger Sub or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent or Merger Sub against the Guarantor Guarantors or any Related Person, or otherwise, except for its (A) rights and claims against any counterparty to the Confidentiality Agreement (or a joinder thereto), (B) rights and claims against Parent or Merger Sub under the Merger Agreement or (C) rights and claims against the Guarantor Guarantors and their successors and assigns (i) under this Limited Guarantee and pursuant to the terms hereof and subject to the conditions hereof and its limitations set forth herein, (ii) to (x) an injunction or injunctions, specific rights performance or other equitable relief to prevent breaches of the Equity Funding Letter or to enforce specifically the terms and provisions of the Equity Commitment Funding Letter of pursuant to, and subject to the Guarantor dated as of the date hereof (the “Equity Commitment Letter”). Recourse against the Guarantor under this Limited Guarantee andlimitations of, if the Company is entitled to specific performance pursuant to Section 8.7(b) 5 thereof and Section 8.08 of the Merger Agreement, (y) to enforce the Guaranteed Party’s rights to consent to certain matters as expressly provided under the Equity Commitment Funding Letter or (z) to enforce the Guarantors’ obligations to fund the Expenses Amount in accordance with the terms and conditions of the Equity Funding Letter (each, a “Permitted Claim”). Except for the Permitted Claims, recourse against the Guarantors under this Limited Guarantee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and its shareholders and all of its their respective Affiliates against the Guarantor Guarantors and any Related Person in respect of any breach, loss or damage arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby (other than any remedies available pursuant to the terms of the Equity Commitment Letter), including if Parent and Purchaser fail to effect the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach the Merger Agreement (except for claims based on Fraud)thereby. The Guaranteed Party hereby covenants and agrees that neither it nor its shareholders shall not institute, and shall cause its their respective Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim arising under, or in connection with, the Offer, the Merger, the Merger Agreement or the transactions contemplated thereby, against any of the Guarantor Guarantors or any Related Person, except for claims Permitted Claims. Notwithstanding the foregoing, in the event the any Guarantor (i) consolidates with or merges with any other Person and is not the continuing or surviving entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any Person such that the Guaranteed Party against sum of such Guarantor’s remaining net assets plus its uncalled capital is less than the Maximum Guarantor Amount (less amounts paid under this Limited Guarantee and claims pursuant prior to the terms of the Equity Commitment Letter subject to the limitations contained therein such event), then, and in the Merger Agreement. Without prejudice to any right to specific performance that each such case, the Guaranteed Party may have under seek recourse, whether by the Equity Commitment Letter enforcement of any judgment or Section 8.7 assessment or by any legal or equitable proceeding or by virtue of any applicable Law, against such continuing or surviving entity or such Person (in either case, a “Successor Entity”), as the case may be, but only to the extent of the Merger Agreement andunpaid liability of such Guarantor hereunder up to the amount of the Guaranteed Obligations for which such Guarantor is liable, except as contemplated determined in Section 1 hereof, the accordance with this Limited Guarantee The Guaranteed Party further covenants and agrees that neither it nor its shareholders shall not have the right to recover, and shall not recover, and neither it nor its shareholders shall not institute, directly or indirectly, and shall cause its their respective Affiliates not to institute, any Legal Proceeding proceeding or bring any other claim to recover, more than the Maximum Aggregate Amount in the aggregate from the Guarantors, their permitted assignees and Parent or Merger Sub or the applicable Maximum Guarantor Amount from the each Guarantor and its permitted assignees in respect of any liabilities or obligations of the GuarantorGuarantors, Parent or Purchaser Merger Sub arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby, and the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries or Affiliates pursuant this Limited Guarantee which are in excess of Maximum Amountsuch liabilities or obligations, in each case other than pursuant to any Permitted Claims. Nothing set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein. The Guaranteed Party acknowledges that the each Guarantor is agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited Guarantee.
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Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributed, directly or indirectly, contributed to Parent unless and until the Offer Closing and/or Merger Closing occurs. No Guarantor shall have any obligation or liability to any Person relating to, arising out of or in connection with the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter or the transactions contemplated thereby other than as expressly set forth herein. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery against the Guarantor or any of its Affiliates or the Guarantors, any former, current or future assignee of any of the Guarantors or any current or future, direct or indirect director, officer, employee, agent agent, Lender or other financing source, Representative or Affiliate of any of the foregoingGuarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the foregoing Guarantors (whether such holder is a limited or general partner, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, securityholder, Affiliate, controlling Person Person, Lender or other financing source, Representative or assignee of any of the foregoing other than Parent, Purchaser Parent or their its assignees under the Merger Agreement (any such Person person or entity, other than the Guarantorundersigned, Parent or Purchaser Parent, or their its assignees under the Merger Agreement, a “Related Person”), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent against the Guarantor Guarantors or any Related Person, or otherwise, except for its rights against the Guarantor Guarantors under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its specific limited rights to enforce in connection with the enforcement of the Equity Commitment Letter (pursuant to and subject to Section 5 thereof and the conditions set forth in Sections 8.3(f) and 9.10(b) of the Guarantor dated as of the date hereof (the “Equity Commitment Letter”Merger Agreement). Recourse against the Guarantor Guarantors under this Limited Guarantee and, if the Company is entitled to specific performance pursuant to Section 8.7(b) of the Merger Agreement, the Equity Commitment Letter shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and all of its Affiliates against the Guarantor Guarantors and any Related Person in respect of any breach, loss or damage arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby (including in respect of any oral representations made or alleged to be made in connection therewith), other than any remedies available pursuant to the terms of the Equity Commitment Letter), including if Parent Letter (pursuant to and Purchaser fail subject to effect Section 5 thereof and the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach conditions set forth in the Merger Agreement (except for claims based on FraudAgreement). The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its Affiliates Related Persons and stockholders not to institute, any Legal Proceeding proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the OfferMerger Agreement, the Merger, the Merger Agreement Equity Commitment Letter or the transactions contemplated thereby, or in respect of any oral representations made or alleged to be made in connection herewith, against any of the Guarantor Guarantors or any Related Person, except for claims of the Guaranteed Party against the Guarantor Guarantors under this Limited Guarantee and claims permitted pursuant to the terms of the Equity Commitment Letter (subject to Section 5 thereof and the limitations contained therein conditions set forth in Sections 8.3(f) and in 9.10(b) of the Merger Agreement). Without prejudice to any right to specific performance that the Guaranteed Party may have under the Equity Commitment Letter or Section 8.7 of the Merger Agreement and, except as contemplated in Section 1 hereofAgreement, the Guaranteed Party further covenants and agrees that it shall not have the right to recover, and shall not recover, and it shall not institute, directly or indirectly, and shall cause its Affiliates Related Persons not to institute, any Legal Proceeding proceeding or bring any other claim to recover, more than the Maximum Aggregate Amount in aggregate from the Guarantors, their permitted assignees and Parent or the applicable Maximum Guarantor Amount from the each Guarantor and its permitted assignees in respect of any liabilities or obligations of the GuarantorGuarantors, Parent or Purchaser Merger Sub arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby, and the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries or Affiliates pursuant this Limited Guarantee which are Related Persons in excess of Maximum Amountsuch liabilities or obligations. Nothing set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the GuarantorGuarantors, except as expressly set forth herein. The Guaranteed Party acknowledges that the each Guarantor is agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited Guarantee.
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Sources: Limited Guarantee (CKX, Inc.)
Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that except as provided in this Limited Guarantee no additional funds are expected to be contributed, directly or indirectly, to Parent unless and until the Offer Closing and/or Merger Closing occurs. The Guaranteed Party further agrees that with respect to its rights hereunder it has and shall have no right of recovery against the Guarantor or any of its Affiliates or any former, current or future, direct or indirect director, officer, employee, agent or Affiliate of any of the foregoing, any former, current or future, direct or indirect holder of any equity interests or securities of the foregoing (whether such holder is a limited or general partner, member, stockholder, securityholder or otherwise), any former, current or future assignee of any of the foregoing or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, securityholder, Affiliate, controlling Person or Representative or assignee of any of the foregoing other than Parent, Purchaser or their its assignees under the Merger Purchase Agreement (any such Person or entity, other than the Guarantor, Parent Guarantor or Purchaser or their assignees under the Merger Purchase Agreement, a “Related Person”), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent Purchaser against the Guarantor or any Related Person, or otherwise, except for its rights against the Guarantor under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its specific rights to enforce the Equity Commitment Letter of the Guarantor dated as of the date hereof (the “Equity Commitment Letter”)hereof. Recourse against the Guarantor under this Limited Guarantee and, if the Company is entitled to specific performance pursuant to Section 8.7(b) of the Merger Agreement, the Equity Commitment Letter shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Guaranteed Party and all of its Affiliates against the Guarantor and any Related Person (other than the Purchaser) in respect of the Guaranteed Obligations and/or any breach, loss or damage arising under, or in connection with, the Merger Purchase Agreement or the transactions contemplated thereby (other than any remedies available pursuant to the terms of the Equity Commitment Letter), including if Parent and Purchaser fail to effect the Offer Closing or Merger Closing for any reason or no reason or they otherwise breach the Merger Agreement (except for claims based on Fraud)Contemplated Transactions. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any Legal Proceeding or bring any other claim arising under, or in connection with, the Offer, the Merger, the Merger Purchase Agreement or the transactions contemplated therebyContemplated Transactions, against the Guarantor or any Related PersonPerson (other than the Purchaser), except for claims of the Guaranteed Party against the Guarantor under this Limited Guarantee and claims pursuant to the terms of the Equity Commitment Letter subject to the limitations contained therein and in the Merger Agreement. Without prejudice to any right to specific performance that the Guaranteed Party may have under the Equity Commitment Letter or Section 8.7 of the Merger Agreement and, except as contemplated in Section 1 hereof, the Guaranteed Party further covenants and agrees that it shall not have the right to recover, and shall not recover, and it shall not institute, directly or indirectly, and shall cause its Affiliates not to institute, any Legal Proceeding or bring any other claim to recover, more than the Maximum Amount from the Guarantor and its permitted assignees in respect of any liabilities or obligations of the Guarantor, Parent or Purchaser arising under or in connection with the Offer, the Merger, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby, and the Guaranteed Party shall promptly return all monies paid to it or its Subsidiaries or Affiliates pursuant this Limited Guarantee which are in excess of Maximum AmountGuarantee. Nothing set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein. The Guaranteed Party acknowledges that the Guarantor is agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited Guarantee.
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