Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that no additional funds are expected to be contributed to Parent unless and until the 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 it has and shall have no right of recovery against any of 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, or other financing source, Representative or Affiliate of any of the Guarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the Guarantors (whether such holder is a limited or general partner, member, stockholder, securityholder or otherwise), any former, current or future director, partner, principal, officer, employee, agent, general or limited partner, manager, member, stockholder, securityholder, Affiliate, controlling Person or other financing source, Representative of any of the foregoing other than permitted assignees of the Guarantors, and Parent, Merger Subsidiary or their permitted assignees under the Merger Agreement (any such person or entity, other than (x) the undersigned and their permitted assignees hereunder or (y) Parent, 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 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 rights 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 Merger Agreement. Recourse against the Guarantor entities that are expressly identified as parties hereto 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 all of its Affiliates against the 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 (pursuant to and subject to Section 5 thereof) and under the terms set forth in the Merger Agreement. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to institute, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the 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 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 terms set forth in Sections 8.3(f)(i) and 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 (including the right to cause the Guarantors to fund the Equity Financing, as permitted under Section 9.11 of the Merger Agreement, or rights set forth in Section 8.3(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 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 Guarantors, Parent or Merger Subsidiary arising under or in connection with 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 controlled Affiliates in excess of such 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 Guarantors, except as expressly set forth herein. The Guaranteed Party acknowledges that 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 no additional funds are expected to be contributed to Parent unless and until the 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 thereinherein. The Guaranteed Party further agrees that it has and shall have no right of recovery against any of 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, Lender or other financing source, Representative or Affiliate of any of the Guarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the Guarantors (whether such holder is a limited or general partner, member, stockholder, securityholder or otherwise), any former, former, current or future director, partner, principal, 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 permitted assignees of the Guarantors, and Parent, Merger Subsidiary Parent or their permitted its assignees under the Merger Agreement (any such person or entity, other than (x) the undersigned and their permitted assignees hereunder undersigned, or (y) Parent, Merger Subsidiary or their permitted its 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 Guarantors or any Guarantor Related Person, or otherwise, except for its rights against the Guarantor entities that are expressly identified as parties hereto Guarantors under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its limited rights in connection with the enforcement of the Equity Commitment Letter (pursuant to and subject to Section 5 thereof) thereof and the enforcement of its rights conditions set forth in Sections 8.3(f)(i8.3(f) and 9.11(e9.10(b) of the Merger Agreement). Recourse against the Guarantor entities that are expressly identified as parties hereto 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 all of its Affiliates against the 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 (pursuant to and subject to Section 5 thereof) thereof and under the terms conditions set forth in the Merger Agreement). The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates Related Persons and stockholders not to institute, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the 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 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) Guarantors under this Limited Guarantee and claims permitted pursuant to the terms of the Equity Commitment Letter (subject to Section 5 thereof) thereof and the terms conditions set forth in Sections 8.3(f)(i8.3(f) and 9.11(e9.10(b) 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 (including the right to cause the Guarantors to fund the Equity Financing, as permitted under Section 9.11 of the Merger Agreement, or rights set forth in Section 8.3(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 Related Persons not to institute, any 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 heretoGuarantors, 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 Guarantors, Parent or Merger Subsidiary Sub arising under or in connection with 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 controlled Affiliates Related Persons in excess of such 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 Guarantors, except as expressly set forth herein. The Guaranteed Party acknowledges that 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
Samples: 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 no additional funds are expected to be contributed to Parent unless and until the 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 it has and shall have no right of recovery against any of the GuarantorsGuarantor, 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, or other financing source, Representative agent or Affiliate of any of the GuarantorsGuarantor, any former, current or future, direct or indirect holder of any equity interests or securities of any of the Guarantors Guarantor (whether such holder is a limited or general partner, member, stockholder, securityholder stockholder or otherwise), any former, current or future assignee of the Guarantor or any former, current or future director, partner, principal, officer, employee, agent, general or limited partner, manager, member, stockholder, securityholder, Affiliate, controlling Person Person, representative or other financing source, Representative assignee of any of the foregoing other than permitted assignees of the Guarantors, and Parent, Merger Subsidiary or their permitted assignees under the Merger Agreement (any each such person or entity, other than (x) the undersigned and their permitted assignees hereunder or (y) Parent, Merger Subsidiary or their permitted assignees under the Merger AgreementPerson, 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 Guarantors Guarantor 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 Guarantee; provided, however, that in the event the Guarantor (i) consolidates with or merges with any other Person and pursuant 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 terms sum of the Guarantor’s remaining net assets plus uncalled capital is less than the Maximum Amount, then, and subject to in each such case, the conditions hereof and its rights in connection with Guaranteed Party may seek recourse, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding (it being understood and agreed that the Equity Commitment Letter (pursuant Guaranteed Party shall not be entitled to and subject to specific performance in respect of Parent’s obligations under the Merger Agreement other than the payment obligations under Section 5 8.3(c) thereof) and or by virtue of any statue, regulation or other applicable Law, against such continuing or surviving entity or such Person (in either case, a “Successor Entity”), as the enforcement of its rights set forth in Sections 8.3(f)(i) and 9.11(e) case may be, but only to the extent of the Merger Agreementliability of the Guarantor hereunder. Recourse against the Guarantor entities that are expressly identified as parties hereto 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 all of its Affiliates against the Guarantors Guarantor and any Guarantor Related Person (other than against Parent) in respect of any breach, loss liabilities or damage obligations 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 (pursuant to and subject to Section 5 thereof) and under the terms set forth in the Merger Agreementthereby. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates Subsidiaries not to institute, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter Agreement 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 Guarantors Guarantor or any Guarantor Related PersonPerson (other than against Parent), except for claims of the Guaranteed Party against the Guarantor entities that are expressly identified as parties hereto (and their permitted assignees) or a Successor Entity under this Limited Guarantee and claims permitted pursuant to the terms of the Equity Commitment Letter (subject to Section 5 thereof) and the terms set forth in Sections 8.3(f)(i) and 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 (including the right to cause the Guarantors to fund the Equity Financing, as permitted under Section 9.11 of the Merger Agreement, or rights set forth in Section 8.3(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 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 Guarantors, Parent or Merger Subsidiary arising under or in connection with 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 controlled Affiliates in excess of such liabilities or obligationsGuarantee. Nothing set forth in this Limited Guarantee shall affect any liability of Parent to the Guaranteed Party or shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the GuarantorsGuarantor, except as expressly set forth herein. The Notwithstanding anything in this Limited Guarantee to the contrary, this Limited Guarantee shall not limit the liability the Guarantor may have to the Guaranteed Party acknowledges that each Guarantor is agreeing to enter for fraud in the inducement in connection with entering into this Limited Guarantee in reliance on Guarantee, the provisions set forth in this Section 3. This Section 3 shall survive termination of this Limited GuaranteeMerger Agreement or the transactions contemplated thereby.
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 no additional funds are expected to be contributed to Parent unless and until the 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 it has and shall have no right of recovery against any of the Guarantors, any former, current or future assignee of any of the Guarantors or any current or future, direct or indirect director, partner, principalmanager, officer, employee, agent, or other financing source, Representative source or Affiliate of any of the Guarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the 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 Guarantors, any former, current or future director, partner, principal, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or other financing sourcerepresentative or assignee of any of the foregoing, Representative or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing other than permitted assignees of the Guarantors, and Parent, Merger Subsidiary Sub or their permitted successors and assignees under the Merger Agreement (any such person or entity, other than (x) the undersigned and their permitted assignees hereunder undersigned, or (y) Parent, Merger Subsidiary Sub, the Debt Financing Borrower or their permitted successors and assignees under the Merger Agreement, a “Guarantor 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 xxxxxx 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 Guarantors or any Guarantor 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 entities that are expressly identified as parties hereto Guarantors and their successors and assigns (i) under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its rights in connection with the enforcement of this Limited Guarantee, (ii) to (A) an injunction or injunctions, specific performance or other equitable remedies to prevent breaches of the Equity Commitment Letter (or to enforce specifically the terms and provisions of the Equity Commitment Letter pursuant to to, and subject to the limitations, thereof, and to Section 5 thereof) 9.12 and the enforcement of its rights set forth in Sections 8.3(f)(i) and 9.11(e) Section 9.15 of the Merger AgreementAgreement and or (B) to enforce the Guaranteed Party’s rights to consent to certain matters as expressly provided under the Equity Commitment Letter (each, a “Permitted Claim”). Recourse Except for the Permitted Claims, recourse against the Guarantor entities that are expressly identified as parties hereto 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 Guarantors and any Guarantor 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 (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 (pursuant to and subject to Section 5 thereof) and under the terms set forth in the Merger Agreementthereby. The Guaranteed Party hereby covenants and agrees that neither it nor its shareholders shall not institute, and shall cause its controlled their respective Affiliates not to institute, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter Agreement or the transactions Transactions contemplated thereby, or in respect of any oral representations made or alleged to be made in connection herewith, against any of the Guarantors or any Guarantor 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 the Guaranteed Party against the Guarantor entities that are expressly identified as parties hereto such consolidation or merger or (y) transfers or conveys all or a substantial portion of its properties 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 terms set forth in Sections 8.3(f)(i) and 9.11(e) of the Merger Agreement. Without prejudice other assets to any right to specific performance person such that the sum of such Guarantor’s remaining net assets plus its uncalled capital, plus available funds is less than the Maximum Guarantor Amount, then, and in each such case, the Guaranteed Party may have under the Merger Agreement seek recourse against such continuing or the Equity Commitment Letter (including the right to cause the Guarantors to fund the Equity Financingsurviving entity or such Person, as permitted under Section 9.11 the case may be, but only to the extent of the Merger Agreement, or rights set forth in Section 8.3(f)(i) unpaid liability of such Guarantor hereunder up to the amount of the Merger Agreement)Guaranteed Obligations for which such Guarantor is liable, as determined in accordance 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 controlled their respective Affiliates not to institute, any proceeding or bring any other claim to recover, more than the Maximum Aggregate Amount in the aggregate from the Guarantors or the Maximum Guarantor entities that are expressly identified as parties heretoAmount from any Guarantor, 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 Merger Sub in respect of any liabilities or obligations of the Guarantors, Parent or Merger Subsidiary Sub arising under or in connection with 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 controlled Subsidiaries or Affiliates in excess of such 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 Guarantors, except as expressly set forth hereinin this Limited Guarantee. The Guaranteed Party acknowledges that each Guarantor is the 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 no additional funds are expected to be contributed to Parent (other than any Expenses Amount (as defined in the Equity Funding Letter)) unless and until the Closing Offer Acceptance Time 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 it has and shall have no right of recovery against any of the Guarantors, any former, current or future assignee of any of the Guarantors or any current or future, direct or indirect director, partner, principalmanager, officer, employee, agent, or other financing source, Representative source or Affiliate of any of the Guarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the 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 Guarantors, any former, current or future director, partner, principal, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or other financing sourcerepresentative or assignee of any of the foregoing, Representative or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing other than permitted Parent or Merger Sub, or its successors and assignees of the Guarantors, and Parent, Merger Subsidiary or their permitted assignees under the Merger Agreement (any such person or entity, other than (x) the undersigned and their permitted assignees hereunder undersigned, or (y) Parent, Merger Subsidiary Sub, or their permitted assignees under the Merger Agreementsuccessors and assigns, a “Guarantor 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 Guarantors or any Guarantor 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 entities that are expressly identified as parties hereto 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 rights in connection with the enforcement limitations set forth herein, (ii) to (x) an injunction or injunctions, specific performance or other equitable relief to prevent breaches of the Equity Commitment Funding Letter (or to enforce specifically the terms and provisions of the Equity Funding Letter pursuant to to, and subject to the limitations of, Section 5 thereof) thereof and the enforcement of its rights set forth in Sections 8.3(f)(i) and 9.11(e) 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 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”). Recourse Except for the Permitted Claims, recourse against the Guarantor entities that are expressly identified as parties hereto 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 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 (pursuant to and subject to Section 5 thereof) and under the terms set forth in the Merger Agreementthereby. The Guaranteed Party hereby covenants and agrees that neither it nor its shareholders shall not institute, and shall cause its controlled their respective Affiliates not to institute, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter Agreement 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 Guarantors or any Guarantor 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 entities that are expressly identified as parties hereto Amount (and their permitted assignees) less amounts paid under this Limited Guarantee prior to such event), then, and claims permitted pursuant to the terms of the Equity Commitment Letter (subject to Section 5 thereof) and the terms set forth in Sections 8.3(f)(i) and 9.11(e) of 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 Merger Agreement enforcement of any judgment or the Equity Commitment Letter assessment or by any legal or equitable proceeding or by virtue of any applicable Law, against such continuing or surviving entity or such Person (including the right to cause the Guarantors to fund the Equity Financingin either case, a “Successor Entity”), as permitted under Section 9.11 the case may be, but only to the extent of the Merger Agreement, or rights set forth in Section 8.3(f)(i) unpaid liability of such Guarantor hereunder up to the amount of the Merger Agreement)Guaranteed Obligations for which such Guarantor is liable, the as determined in 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 controlled their respective Affiliates not to institute, any proceeding or bring any other claim to recover, more than the Maximum Aggregate Amount in the aggregate from the Guarantor entities that are expressly identified as parties heretoGuarantors, their permitted assignees and Parent or Merger Sub 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 Guarantors, Parent or Merger Subsidiary Sub arising under or in connection with 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 controlled Subsidiaries or Affiliates in excess of such 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 GuarantorsGuarantor, except as expressly set forth herein. The Guaranteed Party acknowledges that 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 no additional funds are expected to be contributed to Parent unless and until the Closing occurs. No Guarantor shall have any obligation or liability to any Person relating tothat, 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 the Permitted Claims, it has and shall have no right of recovery against any 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 GuarantorsMerger Agreement, the Company Disclosure Schedule, the Equity Commitment Letter, the Voting Agreement or the Confidentiality Agreement, against the Guarantor, any former, current or future assignee of any of the Guarantors or any current or future, direct or indirect director, partner, principalmanager, officer, employee, agent, or other financing source, Representative source or Affiliate of any of the GuarantorsGuarantor, any former, current or future, direct or indirect holder of any equity interests or securities of any of the Guarantors Guarantor (whether such holder is a limited or general partner, manager, member, stockholder, securityholder or otherwise), any former, current or future assignee of the Guarantor, any former, current or future director, partner, principal, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or other financing source, 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 permitted assignees of the Guarantors, and Parent, Merger Subsidiary Sub or their permitted successors and assignees under the Merger Agreement (any such person or entity, other than (x) the undersigned and their permitted assignees hereunder or (y) Guarantor, Parent, Merger Subsidiary Sub or their permitted successors and assignees under the Equity Commitment Letter, this Limited Guaranty or the Merger Agreement, a “Guarantor 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 xxxxxx 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 Guarantors Guarantor or any Guarantor 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 entities that are expressly identified as parties hereto 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 rights in connection with the enforcement limitations of this Limited Guaranty, (ii) to (A) an injunction or injunctions, specific performance or other equitable remedies to prevent breaches of the Equity Commitment Letter (or to enforce specifically the terms and provisions of the Equity Commitment Letter pursuant to the terms thereof and subject to the limitations set forth therein, and to Section 5 thereof8.02 (Effect of Termination; Termination Fees), Section 9.10 (Specific Enforcement) and the enforcement of its rights set forth in Sections 8.3(f)(i) and 9.11(eSection 9.15 (No Recourse Against Nonparty Affiliates) of the Merger AgreementAgreement and/or (B) to enforce the Guaranteed Party’s rights to consent to certain matters as expressly provided under the Equity Commitment Letter 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 entities that are expressly identified as parties hereto under this Limited Guarantee 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 Guarantors Guarantor and any Guarantor 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 (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 (pursuant to and subject to Section 5 thereof) and under the terms set forth in the Merger Agreementthereby. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to institute, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter Agreement or the transactions contemplated thereby, or in respect the ownership of Company Common Stock by the Guarantor or any oral representations made or alleged to be made in connection herewithof its Related Persons, against the Guarantor or any Related Person of the Guarantors or any Guarantor Related PersonGuarantor, 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 entities that are expressly identified as parties hereto (Maximum Amount, then, 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 terms set forth in Sections 8.3(f)(i) and 9.11(e) of the Merger Agreement. Without prejudice to any right to specific performance that each such case, the Guaranteed Party may have under the Merger Agreement seek recourse, whether by enforcement of any judgment or the Equity Commitment Letter (including the right to cause the Guarantors to fund the Equity Financingassessment or by any legal or equitable proceeding or by virtue of any applicable Law, against such continuing or surviving entity or such Person, as permitted under Section 9.11 the case may be, but only to the extent of the Merger Agreement, or rights set forth in Section 8.3(f)(i) unpaid liability of the Merger Agreement)Guarantor hereunder up to the Maximum Amount. 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 it shall not institute, directly or indirectly, and shall cause its controlled Affiliates not to institute, any proceeding or bring any other claim to recover, recover more than the Maximum Aggregate Amount in the aggregate from the Guarantor entities that are expressly identified as parties heretoGuarantor, their its 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 Merger Sub in respect of any liabilities or obligations of the GuarantorsGuarantor, Parent or Merger Subsidiary Sub arising under or in connection with 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 controlled Affiliates Subsidiaries by or on behalf of Guarantor, Parent or Merger Sub in excess of such 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 GuarantorsGuarantor, except as expressly set forth hereinin this Limited Guaranty. The Guaranteed Party acknowledges that each 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
Samples: 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 no additional funds are expected with respect to be contributed to Parent unless and until the 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 its rights hereunder it has and shall have no right of recovery against the Guarantor or any of the Guarantors, its Affiliates or 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, or other financing source, Representative agent or Affiliate of any of the Guarantorsforegoing, any former, current or future, direct or indirect holder of any equity interests or securities of any of the Guarantors 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, partner, 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, Merger Subsidiary Purchaser or their permitted its assignees under the Merger Purchase Agreement (any such person Person or entity, other than (x) the undersigned and their permitted assignees hereunder Guarantor or (y) Parent, Merger Subsidiary Purchaser or their permitted assignees under the Merger Purchase 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 Purchaser against the Guarantors Guarantor 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 rights 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 Merger Agreementhereof. Recourse against the Guarantor entities that are expressly identified as parties hereto 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 all of its Affiliates against the Guarantors Guarantor and any Guarantor 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 (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 (pursuant to and subject to Section 5 thereof) and under the terms set forth in the Merger AgreementContemplated Transactions. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to institute, any proceeding Legal Proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter Purchase Agreement or the transactions contemplated thereby, or in respect of any oral representations made or alleged to be made in connection herewithContemplated Transactions, against any of the Guarantors Guarantor or any Guarantor Related PersonPerson (other than the Purchaser), 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 terms set forth in Sections 8.3(f)(i) and 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 (including the right to cause the Guarantors to fund the Equity Financing, as permitted under Section 9.11 of the Merger Agreement, or rights set forth in Section 8.3(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 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 Guarantors, Parent or Merger Subsidiary arising under or in connection with 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 controlled Affiliates in excess of such liabilities or obligationsGuarantee. 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 GuarantorsGuarantor, except as expressly set forth herein. The Guaranteed Party acknowledges that each 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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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 contributed, directly or indirectly, 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 the Guarantors, its Affiliates or 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, or other financing source, Representative agent or Affiliate of any of the Guarantorsforegoing, any former, current or future, direct or indirect holder of any equity interests or securities of any of the Guarantors 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, partner, 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, Merger Subsidiary Purchaser or their permitted assignees under the Merger Agreement (any such person Person or entity, other than (x) the undersigned and their permitted assignees hereunder Guarantor, Parent or (y) Parent, Merger Subsidiary Purchaser 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 Guarantors Guarantor 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 in connection with the enforcement of 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 and subject to Section 5 thereof) and the enforcement of its rights set forth in Sections 8.3(f)(i) and 9.11(e8.7(b) of the Merger Agreement. Recourse against , the Guarantor entities that are expressly identified as parties hereto under this Limited Guarantee 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 Guarantors Guarantor 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 (pursuant Letter), including if Parent and Purchaser fail to and subject to Section 5 thereof) and under effect the terms set forth in Offer Closing or Merger Closing for any reason or no reason or they otherwise breach the Merger AgreementAgreement (except for claims based on Fraud). The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to institute, any proceeding Legal Proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger AgreementOffer, the Equity Commitment Letter Merger, the Merger Agreement 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 Guarantors Guarantor 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) the limitations contained therein and the terms set forth in Sections 8.3(f)(i) and 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 (including the right to cause the Guarantors to fund the Equity Financing, as permitted under or Section 9.11 8.7 of the Merger AgreementAgreement and, or rights set forth except as contemplated in Section 8.3(f)(i) of the Merger Agreement)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 controlled Affiliates not to institute, any proceeding Legal 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 GuarantorsGuarantor, Parent or Merger Subsidiary 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 controlled Subsidiaries or Affiliates pursuant this Limited Guarantee which are in excess of such liabilities or obligationsMaximum 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 GuarantorsGuarantor, except as expressly set forth herein. The Guaranteed Party acknowledges that each 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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Sole Remedies. The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent is cash in a de minimis amount and that no additional funds are expected to be contributed to Parent unless and until the 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 thereinOffer Acceptance Time. The Guaranteed Party further agrees that it has and shall have no right of recovery against any of the Guarantors, any former, current or future assignee of any of the Guarantors or any current or future, direct or indirect director, partner, principalmanager, officer, employee, agent, or other financing source, Representative source or Affiliate of any of the Guarantors, any former, current or future, direct or indirect holder of any equity interests or securities of any of the 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 Guarantors, any former, current or future director, partner, principal, officer, employee, agent, financing source, general or limited partner, manager, management company, member, stockholder, securityholder, Affiliate, controlling Person or other financing sourcerepresentative or assignee of any of the foregoing, Representative or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing other than permitted assignees of the Guarantors, and Parent, Merger Subsidiary Purchaser or their permitted successors and assignees under the Merger Agreement (any such person or entity, other than (x) the undersigned and their permitted assignees hereunder undersigned, or (y) Parent, Merger Subsidiary Purchaser or their permitted successors and assignees under the Merger Agreement, a “Guarantor 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 xxxxxx 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 Guarantors or any Guarantor 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 entities that are expressly identified as parties hereto Guarantors and their successors and assigns (i) under this Limited Guarantee and pursuant to the terms and subject to the conditions hereof and its rights in connection with the enforcement 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 Letter (or to enforce specifically the terms and provisions of the Equity Financing Commitment pursuant to to, and subject to the limitations, thereof and Section 5 thereof) and the enforcement of its rights set forth in Sections 8.3(f)(i) and 9.11(e9.5(c) of the Merger AgreementAgreement and or (B) to enforce the Guaranteed Party’s rights to consent to certain matters as expressly provided under the Equity Financing Commitment (each, a “Permitted Claim”). Recourse Except for the Permitted Claims, recourse against the Guarantor entities that are expressly identified as parties hereto 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 Guarantors and any Guarantor 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 (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 (pursuant to and subject to Section 5 thereof) and under the terms set forth in the Merger Agreementthereby. The Guaranteed Party hereby covenants and agrees that neither it nor its shareholders shall not institute, and shall cause its controlled their respective Affiliates not to institute, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter Agreement 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 Guarantors or any Guarantor 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 the Guaranteed Party against the Guarantor entities that are expressly identified as parties hereto such consolidation or merger or (y) transfers or conveys all or a substantial portion of its properties 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 terms set forth in Sections 8.3(f)(i) and 9.11(e) of the Merger Agreement. Without prejudice other assets to any right to specific performance person such that the sum of such Guarantor’s remaining net assets plus its uncalled capital, plus available funds is less than the Maximum Guarantor Amount, then, and in each such case, the Guaranteed Party may have under the Merger Agreement seek recourse against such continuing or the Equity Commitment Letter (including the right to cause the Guarantors to fund the Equity Financingsurviving entity or such Person, as permitted under Section 9.11 the case may be, but only to the extent of the Merger Agreement, or rights set forth in Section 8.3(f)(i) unpaid liability of such Guarantor hereunder up to the amount of the Merger Agreement)Guaranteed Obligations for which such Guarantor is liable, as determined in accordance 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 controlled their respective Affiliates not to institute, any proceeding or bring any other claim to recover, more than the Maximum Aggregate Amount in the aggregate from the Guarantors or the Maximum Guarantor entities that are expressly identified as parties heretoAmount from any Guarantor, 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 Purchaser in respect of any liabilities or obligations of the Guarantors, Parent or Merger Subsidiary Purchaser arising under or in connection with 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 controlled Subsidiaries or Affiliates in excess of such 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 Guarantors, except as expressly set forth hereinin this Limited Guarantee. The Guaranteed Party acknowledges that each Guarantor is the 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
