Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced by Parent or, solely to the extent set forth in the following proviso, the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to the conditions set forth in Section 2; provided that, subject to Sections 5(b), 5(e) and 8, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, be entitled to enforce the rights granted to Parent to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 of the Merger Agreement have been satisfied or waived at the time when the Closing would have occurred but for the failure of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and (iii) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Financing to be funded and (B) the Company has irrevocably confirmed in writing that if specific performance is granted and the Financing is funded, then the Closing will occur or (b) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein). None of Parent’s, Xxxxxx Sub’s or the Company’s creditors, or any Person claiming by, through or on behalf or for the benefit of Parent, the Company or any of their Affiliates shall have the right to enforce this letter agreement or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor. (b) The Company shall not be a third-party beneficiary for any purpose other than as provided for in Section 5(a) hereof. In no event shall this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages). (c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment. (d) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature. (e) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent of its rights specifically set forth in Section 5(a) hereof; (ii) the Other Sponsor may rely upon and enforce the provisions of Section 13 hereof; and (iii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 hereof. Except as expressly provided in the foregoing sentence, nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or the Sponsor, any rights or remedies under or by reason of this letter agreement.
Appears in 2 contracts
Samples: Equity Commitment Letter (Dragoneer Investment Group, LLC), Equity Commitment Letter (General Atlantic, L.P.)
Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced by Parent orMxxxxx Sub (in its sole discretion); provided that, solely to the extent set forth in the following proviso, the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to if the conditions set forth in Section 2; provided that, subject 2 are satisfied and the Company is entitled to Sections 5(b), 5(e) and 8seek specific performance pursuant to Section 9.12 of the Merger Agreement, the Company is hereby made an intended third-a third party beneficiary of the rights granted to Parent for purposes of directly enforcing Merger Sub under this letter agreement to the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunderextent, and willonly to the extent, for of the avoidance of doubt rights set forth in Sections 1, 4, 5, 6, 7 and without limitation, 12 and shall be entitled to enforce the rights granted to Parent an injunction, specific performance or other equitable remedy to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 of the Merger Agreement have been satisfied or waived at the time when the Closing would have occurred but for the failure of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and (iii) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Financing to be funded and (B) the Company has irrevocably confirmed in writing that if specific performance is granted and the Financing is funded, then the Closing will occur or (b) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein)1 hereof. None of Parent’s, Xxxxxx Merger Sub’s or the Company’s creditors, creditors or any Person claiming by, through provider or on behalf or for source of the benefit of Parent, the Company or any of their Affiliates Financing shall have the right to enforce this letter agreement or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor.
(b) The Notwithstanding the foregoing, if the Company or any of its Affiliates asserts in any proceeding that (1) the Sponsor shall contribute an amount of Equity Commitment that exceeds the Cap or (2) the Cap on the Sponsor’s liabilities hereunder or the Cap (as defined in the Other Sponsor Equity Commitment Letter) on the Other Sponsor’s liabilities is illegal, invalid or unenforceable in whole or in part (the “Impermissible Claims”), then (i) the obligations of the Sponsor under this letter agreement shall terminate ab initio and be null and void, (ii) if the Sponsor has previously made any payments under this letter agreement, it shall be entitled to recover such payments, and (iii) the Sponsor shall not be a third-party beneficiary for have any purpose other than as provided for in Section 5(a) hereofliabilities or obligations to any Person under this letter agreement. In no event shall the maximum amount of the liabilities of the Sponsor in the aggregate under this letter agreement amend or modify any rights or claims exceed the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages)Cap.
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment.
(d) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature.
(d) Subject to the terms and conditions set forth herein, the Company shall be entitled to specifically enforce Merger Sub’s right to cause the Equity Commitment to be funded to Merger Sub solely to the extent specifically permitted under Section 4 (a) and the Company shall be a third party beneficiary for such purpose but not for any other purpose (including, without limitation, any claim for monetary damages hereunder or under the Merger Agreement) other than as specified in Section 4(a) hereof. The Company hereby agrees that specific performance shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages); provided, that, if the Company seeks specific performance for such breach of this letter agreement as permitted under Section 4(a), and a court of competent jurisdiction in a final, non-appealable determination as to the availability of specific performance does not specifically enforce the obligations of the Sponsor hereunder pursuant to any proceeding for specific performance brought against the Sponsor, then the Company shall have the right to seek the payments contemplated by, and subject to the terms and conditions of, Section 1 of the Limited Guarantee (subject to the limitations and conditions therein). In addition, the Company shall, and shall cause each of its Affiliates to, cause any pending proceeding to be dismissed with prejudice upon the earlier of (i) the consummation of the Closing by Merger Sub or (ii) the payment of the Parent Termination Fee pursuant to the Merger Agreement.
(e) The parties Each party hereto agree agrees that their its respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its the respective successors and permitted assignsassigns of such other party, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person Person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent Merger Sub to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent of its rights specifically set forth provided in Section 5(a4(a) hereof; (ii) in accordance with, and subject to the Other Sponsor may rely upon terms of the Merger Agreement and enforce the provisions of Section 13 hereof; and (iii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 hereofthis letter agreement. Except as expressly provided in the foregoing sentence, nothing in this letter agreement, express or implied, is intended to confer upon any person Person other than Parent Merger Sub or the Sponsor, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any Person unless such Person is also seeking enforcement of the Other Sponsor Equity Commitment Letter to the extent that the Other Sponsor has not performed in full its obligations under the Other Sponsor Equity Commitment Letter.
Appears in 2 contracts
Samples: Equity Commitment Letter (Advanced Technology (Cayman) LTD), Equity Commitment Letter (Advanced Technology (Cayman) LTD)
Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced by Parent or, solely to the extent set forth (in the following proviso, the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to the conditions set forth in Section 2its sole discretion); provided that, subject to Sections 5(b4(b), 5(e) 6 and 87, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, will be entitled to enforce the rights granted to Parent to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 7.02 of the Merger Agreement (other than any conditions that by their nature are to be satisfied at the Closing, but each of which is capable of being, and is reasonably expected to be satisfied at the Closing) have been satisfied in full or waived waived, if permissible, at the time when the Closing would have occurred but for the failure in accordance with Section 1.02 of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions)Merger Agreement, (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and Agreement, (iii) the Debt Financing and/or Alternative Financing (if applicable) have been funded or all of the Debt Financing and/or Alternative Financing sources have irrevocably confirmed in writing that the Debt Financing and/or Alternative Financing will be funded at the Closing on the terms set forth in the Debt Commitment Letters and/or, if applicable, the Alternative Financing Documents if the Equity Financing is funded at the Closing, (iv) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 7.02 of the Merger Agreement have been satisfied (other than those conditions that by their terms nature are to be satisfied by actions taken at the Closing, but each of which shall be is capable of being being, and is reasonably expected to be satisfied at the Closing) have been satisfied at or the time when the Closing would have occurred but for the failure of the Financing Company is willing to be funded and waive such condition(s), (B) the Company has irrevocably confirmed in writing that stands ready, willing and able to consummate the Closing pursuant to Section 1.02 of the Merger Agreement and (C) if specific performance is granted and the Equity Financing is and Debt Financing (and/or the Alternative Financing, if applicable) are funded, then the Closing will occur on the terms and conditions set forth in the Merger Agreement, (v) Parent (or any Affiliate thereof) has not paid the Parent Termination Fee (bor any portion of such amount), and (vi) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein)Merger Agreement has not been terminated. None of Parent’s, Xxxxxx Mxxxxx Sub’s or the Company’s creditors, creditors or any Person claiming by, through provider or on behalf or for source of the benefit of Parent, the Company or any of their Affiliates Financing shall have the right to enforce this letter agreement or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor.
(b) The Subject to the terms and conditions set forth herein, the Company shall be entitled to specifically enforce Parent’s right to cause the Equity Commitment to be funded to Parent solely to the extent permitted under Section 4(a) and the Company shall not be a third-third party beneficiary for any purpose (including, without limitation, any claim for monetary damages hereunder or under the Merger Agreement) other than as provided for specified in Section 5(a4(a) hereof. In no event shall this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages); provided, that, if the Company seeks specific performance for such breach of this letter agreement as permitted under Section 4(a), and a court of competent jurisdiction in a final, non-appealable determination as to the availability of specific performance does not specifically enforce the obligations of the Sponsor hereunder pursuant to any proceeding for specific performance brought against the Sponsor, then the Company shall have the right to seek the payments contemplated by, and subject to the terms and conditions of, Section 1 of the Limited Guarantee (subject to the limitations and conditions therein). In addition, the Company shall, and shall cause each of its Affiliates to, cause any proceeding still pending to be dismissed with prejudice upon the earlier of (i) the consummation of the Closing by Parent or (ii) payment of the Parent Termination Fee pursuant to the Merger Agreement.
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s maximum amount of the liabilities of the Sponsor in the aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment.
(d) No party hereto may enforce the Sponsor’s obligations under this letter agreement without giving effect to the Cap. Notwithstanding the foregoing, if the Company or any of its Affiliates asserts in any proceeding that the Cap on the Sponsor’s liabilities hereunder or the Cap (as defined in each Other Sponsor Equity Commitment Letter) on any Other Sponsor’s liabilities is illegal, invalid or unenforceable in whole or in part, then (i) the obligations of the Sponsor under this letter agreement shall terminate ab initio and be null and void, (ii) if the Sponsor has previously made any payments under this letter agreement, it shall be entitled to recover such payments, and (iii) the Sponsor shall not have any liabilities or obligations to any person under this letter agreement.
(e) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature.
(ef) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent of its rights specifically set forth provided in Section 5(a4(a) hereof; (ii) in accordance with, and subject to the Other Sponsor may rely upon terms of the Merger Agreement and enforce the provisions of Section 13 hereofthis letter agreement; and (iiiii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 3 and Section 12 hereof. Except as expressly provided in the foregoing sentence, nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or the Sponsor, or, except to the extent expressly provided herein, the Company or the Non-Recourse Parties, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any person unless such person is also seeking enforcement of the Other Sponsor Equity Commitment Letters to the extent that any such Other Sponsor has not performed in full its obligations under its Other Sponsor Equity Commitment Letter.
Appears in 2 contracts
Samples: Equity Commitment Letter (58.com Inc.), Equity Commitment Letter (Yao Jinbo)
Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced by Parent or, solely to the extent set forth Merger Sub (in the following proviso, the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to the conditions set forth in Section 2its sole discretion); provided that, subject to Sections 5(b4(b), 5(e) 6 and 87, the Company shall be entitled to enforce, and is hereby expressly made an intended a third-party beneficiary of this letter agreement with the right to enforce, the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, be entitled to enforce the rights granted to Parent Merger Sub to cause the Sponsor Sponsors, on a joint and several basis, to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to if, and in accordance with the limitations herein, only if the conditions set forth in Section 2, 2 are satisfied and the Company is entitled to seek specific performance pursuant to Section 9.10 9.08 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 of the Merger Agreement have been satisfied or waived at the time when the Closing would have occurred but for the failure of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and (iii) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Financing to be funded and (B) the Company has irrevocably confirmed in writing that if specific performance is granted and the Financing is funded, then the Closing will occur or (b) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein). None of Parent’s, Xxxxxx Merger Sub’s or the Company’s creditors, creditors or any Person claiming by, through provider or on behalf or for source of the benefit of Parent, the Company or any of their Affiliates Financing shall have the right to enforce this letter agreement or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the SponsorSponsors.
(b) The Subject to the terms and conditions set forth herein, the Company shall not be entitled to specifically enforce Merger Sub’s right to cause the Equity Commitment to be funded to Merger Sub solely to the extent permitted under Section 4(a) and the Company shall be a third-third party beneficiary for such purpose but not for any other purpose other than as provided (including, without limitation, any claim for in Section 5(a) hereof. In no event shall this letter agreement amend monetary damages hereunder or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement). The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor Sponsors of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages); provided, that, notwithstanding anything to the contrary, if the Company seeks specific performance for such breach of this letter agreement as permitted under Section 4(a), and a court of competent jurisdiction in a final, non-appealable determination as to the availability of specific performance does not specifically enforce any obligation of any Sponsor hereunder pursuant to any proceeding for specific performance brought against such Sponsor, then the Company shall have the right to seek the payments contemplated by, and subject to the terms and conditions of, Section 1 of the Limited Guarantee (subject to the limitations and conditions therein). In addition, the Company shall, and shall cause each of its Affiliates to, cause any proceeding still pending to be dismissed with prejudice upon the earlier of (i) the consummation of the Closing by Merger Sub or (ii) the payment of the Merger Sub Termination Fee pursuant to the Merger Agreement.
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s maximum amount of the liabilities of the Sponsors in the aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment.
(d) Notwithstanding the foregoing, if the Company or any of its Affiliates asserts in any proceeding that the Cap on the Sponsors’ liabilities hereunder or the Cap (as defined in each Other Sponsor Equity Commitment Letter) on any Other Sponsor’s liabilities is illegal, invalid or unenforceable in whole or in part, then (i) the obligations of the Sponsors under this letter agreement shall terminate ab initio and be null and void, (ii) if any Sponsor has previously made any payments under this letter agreement, it shall be entitled to recover such payments, and (iii) the Sponsors shall not have any liabilities or obligations to any person under this letter agreement.
(e) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor Sponsors under this letter agreement are solely contractual in nature.
(ef) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent Merger Sub to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent of its rights specifically set forth provided in Section 5(a4(a) hereof; (ii) in accordance with, and subject to the Other Sponsor may rely upon terms of the Merger Agreement and enforce the provisions of Section 13 hereofthis letter agreement; and (iiiii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 hereof3 and Section 12. Except as expressly provided in the foregoing sentence, nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent Merger Sub or the SponsorSponsors, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any person unless such person is also seeking enforcement of the Other Sponsor Equity Commitment Letters to the extent that any Other Sponsor has not performed in full its obligations under its Other Sponsor Equity Commitment Letter.
Appears in 2 contracts
Samples: Equity Commitment Letter (Yan Rick), Equity Commitment Letter (Yan Rick)
Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced by Parent or, solely to the extent set forth (in the following proviso, the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to the conditions set forth in Section 2its sole discretion); provided that, subject to Sections 5(b4(b), 5(e) 6 and 87, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, will be entitled to enforce the rights granted to Parent to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 7.02 of the Merger Agreement (other than any conditions that by their nature are to be satisfied at the Closing, but each of which is capable of being, and is reasonably expected to be satisfied at the Closing) have been satisfied in full or waived waived, if permissible, at the time when the Closing would have occurred but for the failure in accordance with Section 1.02 of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions)Merger Agreement, (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and Agreement, (iii) the Debt Financing and/or Alternative Financing (if applicable) have been funded or all of the Debt Financing and/or Alternative Financing sources have irrevocably confirmed in writing that the Debt Financing and/or Alternative Financing will be funded at the Closing on the terms set forth in the Debt Commitment Letters and/or, if applicable, the Alternative Financing Documents if the Equity Financing is funded at the Closing, (iv) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 7.02 of the Merger Agreement have been satisfied (other than those conditions that by their terms nature are to be satisfied by actions taken at the Closing, but each of which shall be is capable of being being, and is reasonably expected to be satisfied at the Closing) have been satisfied at or the time when the Closing would have occurred but for the failure of the Financing Company is willing to be funded and waive such condition(s), (B) the Company has irrevocably confirmed in writing that stands ready, willing and able to consummate the Closing pursuant to Section 1.02 of the Merger Agreement and (C) if specific performance is granted and the Equity Financing is and Debt Financing (and/or the Alternative Financing, if applicable) are funded, then the Closing will occur on the terms and conditions set forth in the Merger Agreement, (v) Parent (or any Affiliate thereof) has not paid the Parent Termination Fee (bor any portion of such amount), and (vi) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein)Merger Agreement has not been terminated. None of Parent’s, Xxxxxx Sub’s or the Company’s creditors, creditors or any Person claiming by, through provider or on behalf or for source of the benefit of Parent, the Company or any of their Affiliates Financing shall have the right to enforce this letter agreement or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor.
(b) The Subject to the terms and conditions set forth herein, the Company shall be entitled to specifically enforce Parent’s right to cause the Equity Commitment to be funded to Parent solely to the extent permitted under Section 4(a) and the Company shall not be a third-third party beneficiary for any purpose (including, without limitation, any claim for monetary damages hereunder or under the Merger Agreement) other than as provided for specified in Section 5(a4(a) hereof. In no event shall this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages); provided, that, if the Company seeks specific performance for such breach of this letter agreement as permitted under Section 4(a), and a court of competent jurisdiction in a final, non-appealable determination as to the availability of specific performance does not specifically enforce the obligations of the Sponsor hereunder pursuant to any proceeding for specific performance brought against the Sponsor, then the Company shall have the right to seek the payments contemplated by, and subject to the terms and conditions of, Section 1 of the Limited Guarantee (subject to the limitations and conditions therein). In addition, the Company shall, and shall cause each of its Affiliates to, cause any proceeding still pending to be dismissed with prejudice upon the earlier of (i) the consummation of the Closing by Parent or (ii) payment of the Parent Termination Fee pursuant to the Merger Agreement.
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s maximum amount of the liabilities of the Sponsor in the aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment.
(d) No party hereto may enforce the Sponsor’s obligations under this letter agreement without giving effect to the Cap. Notwithstanding the foregoing, if the Company or any of its Affiliates asserts in any proceeding that the Cap on the Sponsor’s liabilities hereunder or the Cap (as defined in each Other Sponsor Equity Commitment Letter) on any Other Sponsor’s liabilities is illegal, invalid or unenforceable in whole or in part, then (i) the obligations of the Sponsor under this letter agreement shall terminate ab initio and be null and void, (ii) if the Sponsor has previously made any payments under this letter agreement, it shall be entitled to recover such payments, and (iii) the Sponsor shall not have any liabilities or obligations to any person under this letter agreement.
(e) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature.
(ef) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent of its rights specifically set forth provided in Section 5(a4(a) hereof; (ii) in accordance with, and subject to the Other Sponsor may rely upon terms of the Merger Agreement and enforce the provisions of Section 13 hereofthis letter agreement; and (iiiii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 3 and Section 12 hereof. Except as expressly provided in the foregoing sentence, nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or the Sponsor, or, except to the extent expressly provided herein, the Company or the Non-Recourse Parties, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any person unless such person is also seeking enforcement of the Other Sponsor Equity Commitment Letters to the extent that any such Other Sponsor has not performed in full its obligations under its Other Sponsor Equity Commitment Letter.
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Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced (i) by Parent orXxxxxx, solely (ii) by the Company to seek specific performance of the extent set forth in the following proviso, the Company, in each case in accordance with this letter agreement and subject Sponsor’s obligations to the limitations herein and, with respect to fund the Equity Commitment, (iii) by the Company to seek specific performance of Holdco’s obligations under Section 1(a) of this letter agreement to contribute such funds to Parent, in the case of each of clause (ii) and clause (iii), solely in accordance with, and to the conditions extent expressly permitted by Section 9.08 of the Merger Agreement, and subject further to Section 6 and Section 7, as though the Company were a party hereto or (iv) by the Company, as explicitly set forth in Section 2; provided that, subject to Sections 5(b), 5(e) and 8, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, be entitled to enforce the rights granted to Parent to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 13 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 of the Merger Agreement have been satisfied or waived at the time when the Closing would have occurred but for the failure of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and (iii) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Financing to be funded and (B) the Company has irrevocably confirmed in writing that if specific performance is granted and the Financing is funded, then the Closing will occur or (b) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein)agreement. None of ParentHoldco’s, Xxxxxx’s, Xxxxxx Sub’s or the Company’s creditors, or any Person claiming by, through or on behalf or for the benefit of Parent, the Company or any of their Affiliates creditors shall have the right to enforce this letter agreement, to cause Holdco, Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor, or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor.
(b) The Company shall not be a third-party beneficiary for any purpose other than as provided for in Section 5(a) hereofXxxxxx. In no event shall this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages).
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment.
(d) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature.
(e) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent that it seeks specific performance to cause (x) Holdco, Parent and/or Merger Sub to seek specific performance of its rights specifically the Sponsor’s obligations to fund the Equity Commitment and (y) Parent and/or Merger Sub to seek specific performance of Holdco’s obligations under Section 1(a) of this letter agreement to contribute such funds to Parent, in the case of each of clause (x) and clause (y), in accordance with, and subject to the limitations as set forth in the Merger Agreement, or to the extent of the explicit rights of the Company under Section 5(a) hereof; (ii) 13 of this letter agreement. Parent is a third-party beneficiary of the Other Sponsor may rely upon and enforce the provisions first sentence of Section 13 hereof; and (iii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 hereof5. Except as expressly provided in the foregoing sentence, nothing Nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or Holdco, the SponsorSponsor and, to the extent expressly provided herein, the Company and Parent, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any person unless (xx) such person is also seeking enforcement of the Other Sponsor Equity Commitment Letters and/or (yy) each Other Sponsor has satisfied or is prepared to satisfy its obligations under its Other Sponsor Equity Commitment Letter.
Appears in 1 contract
Samples: Equity Commitment Letter (WuXi PharmaTech (Cayman) Inc.)
Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced by Parent or, solely to the extent set forth in the following proviso, the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to the conditions set forth in Section 2its sole discretion; provided that, subject to Sections 5(b4(b), 5(e) 6 and 87, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, will be entitled to enforce the rights granted to Parent to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, if and only if, (i) if all conditions in Sections 7.01 and 7.03 7.02 of the Merger Agreement (other than any conditions that by their nature are to be satisfied at the Closing, but each of which is capable of being, and is reasonably expected to be satisfied at the Closing) have been satisfied in full or waived waived, if permissible, at the time when the Closing would have occurred but for the failure of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to in accordance with Section 1.02 of the Merger Agreement and (iii) Agreement. Further, the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Financing to be funded and (B) the Company has irrevocably confirmed in writing that if specific performance is granted and the Financing is funded, then the Closing will occur or (b) fund the Damages Commitment in accordance with Section 3 an express third-party beneficiary of this letter agreement (subject and shall be entitled to and specific performance of the terms hereof to prevent breaches of this letter agreement by the parties hereto, in accordance with the limitations herein)addition to any other remedy at law or equity. None of Parent’s, Xxxxxx Sub’s or the Company’s creditors, or any Person claiming by, through or on behalf or for the benefit of Parent, the Company or any of their Affiliates creditors shall have the right to enforce this letter agreement or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor.
(b) The Company shall not be a third-party beneficiary for any purpose other than as provided for in Section 5(a) hereof. In no event shall this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages).
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s maximum amount of the liabilities of the Sponsor in the aggregate liability under this letter agreement exceed the Cap.
(c) No party hereto may enforce the Sponsor’s obligations under this letter agreement without giving effect to the Cap. Notwithstanding the foregoing, if the Company or any of its Affiliates asserts in any proceeding that the Cap on the Sponsor’s liabilities hereunder is illegal, invalid or unenforceable in whole or in part, then (i) in the case obligations of the Equity CommitmentSponsor under this letter agreement shall terminate ab initio and be null and void, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall if the Sponsor has previously made any payments under this letter agreement, it shall be required entitled to fund both recover such payments, and (iii) the Sponsor shall not have any portion of the Equity Commitment and liabilities or obligations to any portion of the Damages Commitmentperson under this letter agreement.
(d) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature.
(e) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent of its rights specifically set forth provided in Section 5(a4(a) hereof; (ii) in accordance with, and subject to the Other Sponsor may rely upon terms of the Merger Agreement and enforce the provisions of Section 13 hereofthis letter agreement; and (iiiii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 hereofSections 3 and 12. Except as expressly provided in the foregoing sentence, nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or the Sponsor, or, except to the extent expressly provided herein, the Company or the Non-Recourse Parties, any rights or remedies under or by reason of this letter agreement.
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Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced (a) by Parent orMerger Company, (b) by the Company to seek specific performance of each Sponsor’s obligations to fund its Equity Commitment, solely in accordance with, and to the extent set forth in expressly permitted by Section 10.08 of the following provisoMerger Agreement, and subject further to Section 6 and Section 7, as though the Company were a party hereto or (c) by the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to the conditions as explicitly set forth in Section 2; provided that, subject to Sections 5(b), 5(e) and 8, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, be entitled to enforce the rights granted to Parent to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 of the Merger Agreement have been satisfied or waived at the time when the Closing would have occurred but for the failure of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and (iii) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Financing to be funded and (B) the Company has irrevocably confirmed in writing that if specific performance is granted and the Financing is funded, then the Closing will occur or (b) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein)13. None of Parent’s, Xxxxxx SubMerger Company’s or the Company’s creditors, or any Person claiming by, through or on behalf or for the benefit of Parent, the Company or any of their Affiliates creditors shall have the right to enforce this letter agreement or agreement, to cause Parent, Merger Sub Company or the Company to enforce this letter agreement against any Sponsor, or to cause the Sponsor.
(b) The Company shall not be a third-party beneficiary for any purpose other than as provided for in Section 5(a) hereof. In no event shall to enforce this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger AgreementCompany. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages).
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment.
(d) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature.
(e) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its their respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent Merger Company to enforce, the obligations set forth therein; provided provided, that (i) the Company is a an express third-party beneficiary of this letter agreement, and this letter agreement may be enforced by the Company in seeking specific performance of each Sponsor’s obligations to fund its Equity Commitment, in accordance with, and subject to the extent and only limitations as set forth in, the Merger Agreement, or to the extent of its the explicit rights specifically set forth in of the Company under Section 5(a) hereof; (ii) the Other Sponsor may rely upon and enforce the provisions of Section 13 hereof; and (iii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 hereof13. Except as expressly provided in the foregoing sentence, nothing Nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or the SponsorSponsors and, to the extent expressly provided herein, the Company and Merger Company, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or any Equity Commitment to be funded hereunder be enforced by any person unless (i) such person is also seeking enforcement of the Other Sponsor Equity Commitment Letter and/or (ii) the Other Sponsor has satisfied or is prepared to satisfy its obligations under the Other Sponsor Equity Commitment Letter.
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Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced by Parent or, solely to the extent set forth (in the following proviso, the Company, in each case in accordance with this letter agreement and subject to the limitations herein and, with respect to the Equity Commitment, to the conditions set forth in Section 2its sole discretion); provided that, subject to Sections 5(b4(b), 5(e) 6 and 87, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, will be entitled to enforce the rights granted to Parent to cause the Sponsor any Warburg Entity to (a) fund the Equity Commitment in accordance with Section 1 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 7.02 of the Merger Agreement (other than any conditions that by their nature are to be satisfied at the Closing, but each of which is capable of being, and is reasonably expected to be satisfied at the Closing) have been satisfied in full or waived waived, if permissible, at the time when the Closing would have occurred but for the failure in accordance with Section 1.02 of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions)Merger Agreement, (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and Agreement, (iii) the Debt Financing and/or Alternative Financing (if applicable) have been funded or all of the Debt Financing and/or Alternative Financing sources have irrevocably confirmed in writing that the Debt Financing and/or Alternative Financing will be funded at the Closing on the terms set forth in the Debt Commitment Letters and/or, if applicable, the Alternative Financing Documents if the Equity Financing is funded at the Closing, (iv) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 7.02 of the Merger Agreement have been satisfied (other than those conditions that by their terms nature are to be satisfied by actions taken at the Closing, but each of which shall be is capable of being being, and is reasonably expected to be satisfied at the Closing) have been satisfied at or the time when the Closing would have occurred but for the failure of the Financing Company is willing to be funded and waive such condition(s), (B) the Company has irrevocably confirmed in writing that stands ready, willing and able to consummate the Closing pursuant to Section 1.02 of the Merger Agreement and (C) if specific performance is granted and the Equity Financing is and Debt Financing (and/or the Alternative Financing, if applicable) are funded, then the Closing will occur on the terms and conditions set forth in the Merger Agreement, (v) Parent (or any Affiliate thereof) has not paid the Parent Termination Fee (bor any portion of such amount), and (vi) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein)Merger Agreement has not been terminated. None of Parent’s, Xxxxxx Mxxxxx Sub’s or the Company’s creditors, creditors or any Person claiming by, through provider or on behalf or for source of the benefit of Parent, the Company or any of their Affiliates Financing shall have the right to enforce this letter agreement or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsorany Warburg Entity.
(b) The Subject to the terms and conditions set forth herein, the Company shall be entitled to specifically enforce Parent’s right to cause the Equity Commitment to be funded to Parent solely to the extent permitted under Section 4(a) and the Company shall not be a third-third party beneficiary for any purpose (including, without limitation, any claim for monetary damages hereunder or under the Merger Agreement) other than as provided for specified in Section 5(a4(a) hereof. In no event shall this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor any Warburg Entity of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages); provided, that, if the Company seeks specific performance for such breach of this letter agreement as permitted under Section 4(a), and a court of competent jurisdiction in a final, non-appealable determination as to the availability of specific performance does not specifically enforce the obligations of such Warburg Entity hereunder pursuant to any proceeding for specific performance brought against such Warburg Entity, then the Company shall have the right to seek the payments contemplated by, and subject to the terms and conditions of, Section 1 of the Limited Guarantee (subject to the limitations and conditions therein). In addition, the Company shall, and shall cause each of its Affiliates to, cause any proceeding still pending to be dismissed with prejudice upon the earlier of (i) the consummation of the Closing by Parent or (ii) payment of the Parent Termination Fee pursuant to the Merger Agreement.
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s maximum amount of the liabilities of the Sponsor in the aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, and in no event shall the Sponsor be required to fund both maximum amount of liabilities of any portion Warburg Entity under this letter agreement exceed such Warburg Entity’s Pro Rata Percentage (as defined below) of the Equity Commitment and any portion of the Damages CommitmentCap.
(d) No party hereto may enforce the Sponsor’s obligations under this letter agreement without giving effect to the Cap and no party hereto may enforce any Warburg Entity’s obligations under this letter agreement without giving effect to such Warburg Entity’s Pro Rata Percentage (as defined below) of the Cap. Notwithstanding the foregoing, if the Company or any of its Affiliates asserts in any proceeding that the Cap on the Sponsor’s liabilities hereunder, or any Warburg Entity’s Pro Rata Percentage (as defined below) of the Cap on such Warburg Entity’s liabilities hereunder, or the Cap (as defined in each Other Sponsor Equity Commitment Letter) on any Other Sponsor’s liabilities is illegal, invalid or unenforceable in whole or in part, then (i) the obligations of the Sponsor under this letter agreement shall terminate ab initio and be null and void, (ii) if any Warburg Entity has previously made any payments under this letter agreement, it shall be entitled to recover such payments, and (iii) the Sponsor shall not have any liabilities or obligations to any person under this letter agreement.
(e) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties heretohereto (including among the Warburg Entities), and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor and each Warburg Entity under this letter agreement are solely contractual in nature, and (iii) the determination of each Warburg Entity was independent of each other. Notwithstanding anything to the contrary contained in this letter agreement, the liabilities of each Warburg Entity shall be several (not joint and several) based upon its respective Pro Rata Percentage (as defined below), and no Warburg Entity shall be liable for any amounts hereunder in excess of its Pro Rata Percentage (as defined below) of the Equity Commitment (or such lesser amount as may be required to be paid by the Sponsor in accordance with the terms hereof and the Merger Agreement, as applicable). For the purpose of this letter agreement, the “Pro Rata Percentage” of each Warburg Entity is as set forth opposite each Warburg Entity’s name in Schedule A hereto (subject to adjustment by the Sponsor from time to time); provided, that in any event the total Pro Rata Percentage of the Sponsor (including any permitted assigns) shall always equal 100%).
(ef) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent of its rights specifically set forth provided in Section 5(a4(a) hereof; (ii) in accordance with, and subject to the Other Sponsor may rely upon terms of the Merger Agreement and enforce the provisions of Section 13 hereofthis letter agreement; and (iiiii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 3 and Section 12 hereof. Except as expressly provided in the foregoing sentence, nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or the Sponsor, or, except to the extent expressly provided herein, the Company or the Non-Recourse Parties, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any person unless such person is also seeking enforcement of the Other Sponsor Equity Commitment Letters to the extent that any such Other Sponsor has not performed in full its obligations under its Other Sponsor Equity Commitment Letter.
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Enforceability; Third-Party Beneficiary. (a) This letter agreement may only be enforced (i) by Parent orXxxxxx, solely (ii) by the Company to seek specific performance of the extent set forth in the following proviso, the Company, in each case in accordance with this letter agreement and subject Sponsor’s obligations to the limitations herein and, with respect to fund the Equity Commitment, (iii) by the Company to seek specific performance of Holdco’s obligations under Section 1(a) of this letter agreement to contribute such funds to Parent, in the case of each of clause (ii) and clause (iii), solely in accordance with, and to the conditions extent expressly permitted by Section 9.08 of the Merger Agreement, and subject further to Section 6 and Section 7, as though the Company were a party hereto or (iv) by the Company, as explicitly set forth in Section 2; provided that, subject to Sections 5(b), 5(e) and 8, the Company is hereby made an intended third-party beneficiary of the rights granted to Parent for purposes of directly enforcing the obligations of Sponsor or, if applicable, its successors or permitted assigns hereunder, and will, for the avoidance of doubt and without limitation, be entitled to enforce the rights granted to Parent to cause the Sponsor to (a) fund the Equity Commitment in accordance with Section 1 13 of this letter agreement (subject to and in accordance with the limitations herein, the conditions in Section 2, and to Section 9.10 of the Merger Agreement) through an action for specific performance (or similar equitable relief) if, and only if, (i) all conditions in Sections 7.01 and 7.03 of the Merger Agreement have been satisfied or waived at the time when the Closing would have occurred but for the failure of the Financing to be funded (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), (ii) Parent fails to consummate the Closing by the date that the Closing is required to have occurred pursuant to Section 1.02 of the Merger Agreement and (iii) the Company has confirmed in writing to Parent (and the Company shall not have delivered written notice purporting to revoke such notice) that (A) all conditions in Sections 7.01 and 7.03 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Financing to be funded and (B) the Company has irrevocably confirmed in writing that if specific performance is granted and the Financing is funded, then the Closing will occur or (b) fund the Damages Commitment in accordance with Section 3 of this letter agreement (subject to and in accordance with the limitations herein)agreement. None of Holdco’s, Parent’s, Xxxxxx Sub’s or the Company’s creditors, or any Person claiming by, through or on behalf or for the benefit of Parent, the Company or any of their Affiliates creditors shall have the right to enforce this letter agreement, to cause Holdco, Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor, or to cause Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor.
(b) The Company shall not be a third-party beneficiary for any purpose other than as provided for in Section 5(a) hereofHoldco. In no event shall this letter agreement amend or modify any rights or claims the Company may have against any person under the express terms of the Merger Agreement. The Company hereby agrees that specific performance (or similar equitable relief) to fund the Equity Commitment or the Damages Commitment as provided for in Section 5(a) hereof shall be its sole and exclusive remedy with respect to any breach by the Sponsor of this letter agreement and that the Company may not seek or accept any other form of relief that may be available for any such breach of this letter agreement (including monetary damages).
(c) Notwithstanding anything to the contrary set forth herein, in no event shall the Sponsor’s aggregate liability under this letter agreement (i) in the case of the Equity Commitment, exceed the Equity Commitment Cap or (ii) in the case of the Damages Commitment, exceed the Damages Commitment Cap. For the avoidance of doubt, in no event shall the Sponsor be required to fund both any portion of the Equity Commitment and any portion of the Damages Commitment.
(d) Each party hereto acknowledges and agrees that (i) this letter agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture, relationship, between or among any of the parties hereto, and neither this letter agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (ii) the obligations of the Sponsor under this letter agreement are solely contractual in nature.
(e) The parties hereto agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth therein; provided that (i) the Company is a third-party beneficiary of this letter agreement to the extent and only to the extent that it seeks specific performance to cause (x) Holdco, Parent and/or Merger Sub to seek specific performance of its rights specifically the Sponsor’s obligations to fund the Equity Commitment and (y) Parent and/or Merger Sub to seek specific performance of Holdco’s obligations under Section 1(a) of this letter agreement to contribute such funds to Parent, in the case of each of clause (x) and clause (y), in accordance with, and subject to the limitations as set forth in the Merger Agreement, or to the extent of the explicit rights of the Company under Section 5(a) hereof; (ii) 13 of this letter agreement. Parent is a third-party beneficiary of the Other Sponsor may rely upon and enforce the provisions first sentence of Section 13 hereof; and (iii) the Non-Recourse Parties may rely upon and enforce the provisions of Section 4 hereof5. Except as expressly provided in the foregoing sentence, nothing Nothing in this letter agreement, express or implied, is intended to confer upon any person other than Parent or Holdco, the SponsorSponsor and, to the extent expressly provided herein, the Company and Parent, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any person unless (xx) such person is also seeking enforcement of the Other Sponsor Equity Commitment Letters and/or (yy) each Other Sponsor has satisfied or is prepared to satisfy its obligations under its Other Sponsor Equity Commitment Letter.
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Samples: Equity Commitment Letter (WuXi PharmaTech (Cayman) Inc.)
