Exhibit 99.2
RCBA Strategic Partners, L.P.
000 Xxxxxxxxxx Xx., Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
February 23, 2001
Board of Directors
CB Xxxxxxx Xxxxx Services, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Chairman of the Board of Directors
Dear Sirs:
Concurrently herewith CB Xxxxxxx Xxxxx Services, Inc., a Delaware
corporation (the "Company") is entering into an Agreement and Plan of Merger,
dated as of the date hereof (the "Agreement"), by and among the Company, XXXX XX
Holding Corp., a Delaware corporation ("Holding"), and XXXX XX Corp., a Delaware
corporation wholly owned by Holding ("Acquiror"). Capitalized terms in this
letter shall have the meaning ascribed thereto in the Agreement.
In exchange for good and valuable consideration and in order to induce
the Company to enter into the Agreement, RCBA Strategic Partners, L.P. ("XXXX"),
an affiliate of Holding and Acquiror, hereby irrevocably guarantees (the
"Guarantee") the payment to the Company of any and all amounts which are finally
judicially determined to be due to the Company from Acquiror or Holding by
reason of the willful breach of the terms of the Agreement by Acquiror or
Holding (any such amount so due, an "Obligation"), up to a maximum of
$20,000,000 in the manner set forth in the following paragraph of this letter.
For the purposes of this Guarantee, the term "finally judicially determined"
shall mean the entry of a judgment by a court or other tribunal of competent
jurisdiction, which judgment has become final and non-appealable, that Acquiror
or Holding are in willful breach of the terms of the Agreement or, in the event
either Acquiror or Holding become the subject of a case under any chapter of
title 11 of the United States Code, the allowance by order of the bankruptcy
court or other court of competent jurisdiction, of the Company's proof of claim
against Acquiror or Holding based on its willful breach of the Agreement, which
order has become final and non-appealable.
If Acquiror or Holding shall have been finally judicially determined
to have been in willful breach of the Agreement, then XXXX, promptly upon, and
in no event less than five Business Days after, the Company's written demand,
shall be obligated to pay to the Company an amount equal to the unpaid
Obligation then due and owing, up to a maximum of $20,000,000.
CB Xxxxxxx Xxxxx Services, Inc. 2
February 23, 2001
Any Obligation paid by XXXX shall be paid in lawful currency of the United
States of America and in immediately available funds.
This Guarantee shall terminate upon the earlier of (i) the Closing
Date or (ii) the termination of the Agreement pursuant to the provisions of
Section 10.1 thereof under circumstances which can not give rise to any
Obligation.
This Guarantee is unconditional. XXXX hereby waives all notices
(including notice of acceptance of the Guarantee, of default or nonperformance,
demands and protests in connection with the enforcement of the obligations
hereunder).
NO REMEDIES OTHER THAN AS PROVIDED BY THIS GUARANTEE SHALL BE
AVAILABLE AGAINST XXXX, XXXXXXX SPOGLI & CO. ("XXXXXXX XXXXXX") OR THEIR
RESPECTIVE AFFILIATES (OTHER THAN ACQUIROR OR HOLDING), DIRECTLY OR INDIRECTLY
(INCLUDING THROUGH A CLAIM AGAINST ACQUIROR OR HOLDING), WITH RESPECT TO THE
AGREEMENT OR THE CONTEMPLATED TRANSACTIONS, OTHER THAN FOR FRAUD OR PURSUANT TO
THE CONFIDENTIALITY AGREEMENT REFERENCED IN SECTION 8.4 OF THE AGREEMENT. IT IS
UNDERSTOOD AND AGREED THAT THE COMPANY WILL RECOVER ANY RECOVERABLE AMOUNTS
ARISING OUT OF THE AGREEMENT SOLELY FROM ACQUIROR OR HOLDING UNDER THE AGREEMENT
OR FROM XXXX HEREUNDER (AS PROVIDED HEREIN) OR PURSUANT TO THE CONFIDENTIALITY
AGREEMENT REFERENCED IN SECTION 8.4 OF THE AGREEMENT. THE COMPANY COVENANTS NOT
TO XXX XXXX, XXXXXXX XXXXXX OR THEIR RESPECTIVE AFFILIATES (OTHER THAN ACQUIROR
OR HOLDING) FOR ANY MATTER ARISING OUT OF THE AGREEMENT OR OUT OF THE
CONTEMPLATED TRANSACTIONS, OTHER THAN FOR FRAUD OR TO ENFORCE THIS GUARANTEE OR
PURSUANT TO THE CONFIDENTIALITY AGREEMENT REFERENCED IN SECTION 8.4 OF THE
AGREEMENT. THIS GUARANTEE CONSTITUTES THE SOLE REMEDY OF THE COMPANY AGAINST
XXXX, XXXXXXX SPOGLI OR THEIR AFFILIATES (OTHER THAN ACQUIROR OR HOLDING) WITH
RESPECT TO THE AGREEMENT OR WITH RESPECT TO THE CONTEMPLATED TRANSACTIONS, OTHER
THAN FOR FRAUD OR PURSUANT TO THE CONFIDENTIALITY AGREEMENT REFERENCED IN
SECTION 8.4 OF THE AGREEMENT.
XXXX hereby represents and warrants to the Company as to the
following: (a) it has all requisite legal capacity, power and authority to
enter into this Guarantee and to perform its obligations hereunder; (b) this
Guarantee has been duly authorized, executed and delivered by XXXX and
constitutes a valid and binding obligation of XXXX enforceable in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; (c) the execution and delivery of this Guarantee do not,
and the compliance by XXXX with the terms hereof will not, conflict with or
result in any violation of, or default (with or without notice or lapse of time
or both) under, permit the termination of any provision of or result in the
termination of or the acceleration of the maturity
CB Xxxxxxx Xxxxx Services, Inc. 3
February 23, 2001
or performance of, or result in the creation or imposition of any Lien upon any
of the assets or properties of XXXX under, (i) any provision of any agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to such
undersigned party or its property or assets, (ii) the organizational documents
of XXXX or (iii) any mortgage, lease, franchise, license, permit, agreement,
instrument, law, order, arbitration award, judgment or decree to which XXXX is a
party or by which it is bound, except to the extent that any such events would
not reasonably be expected to have a material adverse effect on XXXX'x ability
to perform under this Guarantee.
Neither this Guarantee nor any of the rights or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent
of the other parties. Subject to the preceding sentence, this Guarantee will be
binding upon, inure to the benefit of and be enforceable only by the parties
hereto and their respective permitted assigns. Any attempted assignment in
violation of the terms of this paragraph shall be null and void.
This Guarantee constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings among the parties with respect thereto. The waiver by any party
of a breach of any provision hereunder shall not operate or be construed as a
waiver of any prior or subsequent breach of the same or any other provision.
Any term or provision of this Guarantee which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Guarantee in any other jurisdiction.
This Guarantee shall be governed by and construed in accordance with
the law of the State of Delaware applicable to contracts and executed and to be
performed entirely within such State.
CB Xxxxxxx Xxxxx Services, Inc. 4
February 23, 0000
Xxxxxxxxx,
XXXX STRATEGIC PARTNERS, L.P.
By: RCBA GP, L.L.C., its general partner
By: /s/ Claus X. Xxxxxx
----------------------------
Name: Claus X. Xxxxxx
Title: Managing Member
Agreed to and accepted as of the
date first set forth above:
CB XXXXXXX XXXXX SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
