March 15, 2010
Exhibit
99.1
EXECUTION
COPY
|
March 15,
2010
|
0000
Xxxxxxxx Xxxxx
Xxxxxxx
Xxxxxx, Xxxxx 00000
Ladies
and Gentlemen:
This
Limited Guarantee is being delivered by ONCAP Investment Partners II L.P. (the “Investor”) to Sport
Supply Group, Inc., a Delaware corporation (the “Company”), in
connection with the execution of that Agreement and Plan of Merger, dated as of
the date hereof (as it may be amended from time to time, the “Merger Agreement”),
by and among Sage Parent Company, Inc., a Delaware corporation (“Parent”), Sage Merger
Company, Inc., a Delaware corporation and wholly-owned subsidiary of Parent
(“Sub”), and
the Company, pursuant to which Sub will be merged with and into the Company at
the Effective Time with the Company as the surviving
corporation. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Merger Agreement. The
Investor and the Company hereby agree as follows:
1. LIMITED
OBLIGATIONS. To induce the Company to enter into the Merger
Agreement, the Investor hereby absolutely, unconditionally and irrevocably
guarantees to the Company, the due and punctual performance and discharge of all
of the payment obligations of Parent and Sub pursuant to the terms and
conditions of Section 6.06 of
the Merger Agreement and the due and punctual payment and discharge of the
payment obligations of Parent or Sub pursuant to Damages (as defined below) for
which Parent or Sub have become liable to the Company pursuant to a Judgment (as
defined below) rendered against Parent or Sub in the event the Company
terminates the Merger Agreement pursuant to Section 8.01(e) due to a willful and
material breach by Parent or Sub of the Merger Agreement and the Company brings
a claim for Damages under Section 8.02 of the Merger Agreement against Parent or
Sub for such willful and material breach (collectively, the “Obligations”); provided that the
maximum amount payable by the Investor hereunder shall not exceed (w) with
respect to the payment of the Parent Termination Fee pursuant to Section 6.06(d)(1),
an amount in the aggregate equal to (1) $10,000,000, plus (2) the amount
of any Company Expenses due and payable pursuant to the terms of Section 6.06(e)
of the Merger Agreement (in an amount not to exceed $2,000,000), plus (3) the amount
of any costs or expenses due and payable pursuant to the terms of Section 6.06(f)
of the Merger Agreement (collectively, the “Maximum Cap”), (x)
with respect to the payment of the Parent Breakup Fee pursuant to Section 6.06(d),
an amount in the aggregate equal to (1) $6,000,000, plus (2) the amount
of any Company Expenses if and to the extent due and payable pursuant to the
terms of Section 6.06(e)
of the Merger Agreement (in an amount not to exceed $2,000,000), plus (3) the amount
of any costs or expenses due and payable pursuant to the terms of Section 6.06(f)
of the Merger Agreement (collectively, the “Financing Cap”), (y)
with respect to any Company Expenses that are due and payable pursuant to Section 6.06(e) of
the Merger Agreement in connection with a termination of the Merger Agreement by
Parent pursuant to Section 8.01(h) of
the Merger Agreement, an amount in the aggregate equal to (1) the amount of any
Company Expenses due and payable pursuant to the terms of Section 6.06(e)
of the Merger
Agreement
(in an amount not to exceed $2,000,000), and (2) the amount of any costs or
expenses due and payable pursuant to the terms of Section 6.06(f)
of the Merger Agreement (collectively, the “Appraisal Rights
Cap”), and (z) in the event the Company terminates the Merger Agreement
pursuant to Section
8.01(e) due to a willful and material breach by Parent or Sub of the
Merger Agreement and the Company brings a claim for damages under Section 8.02 of the
Merger Agreement (“Damages”) against
Parent or Sub for such willful and material breach in a court specified in
Section 9.10 of the Merger Agreement (in which claim the Investor may be joined
by the Company as a defendant solely to enable the Company to request that such
court determine that if and to the extent the Company is awarded a Judgment,
that the Investor (instead of Parent or Sub) shall satisfy, subject to the
Damages Cap, the payment obligations set forth in this clause (z)) and if and to
the extent the Company receives a final judgment (after all rights to appeal
have been exercised) awarded by such court for Damages (a “Judgment”), an amount
of such Damages awarded in such Judgment up to but not in excess of (I) an
amount equal to $12,000,000 minus (II) the amount
of any fees or expenses previously paid by Parent, Sub, the Investor or any of
their respective Affiliates to the Company or any of its Affiliates (including
without limitation the Parent Termination Fee, the Parent Breakup Fee and/or any
Company Expenses) (the “Damages Cap”; the
Obligations, in each case as limited by the Maximum Cap, the Financing Cap, the
Appraisal Rights Cap, or the Damages Cap, as the case may be, the “Merger Agreement
Obligations”). The parties understand and agree that any amount
that the Company may be entitled to pursuant to clause (z) of the first sentence
of this Section 1: (A) may, due to the Damages Cap, be less than all
of such Damages awarded in a Judgment; and (B) shall in no event exceed the
lesser of the Damages Cap or the amount of such Damages awarded in a
Judgment. The parties agree that (i) this Limited Guarantee may not
be enforced without giving effect to the Maximum Cap, the Financing Cap, the
Appraisal Rights Cap, or the Damages Cap, as applicable, (ii) in no event shall
an amount in excess of the Maximum Cap be due and payable under this Limited
Guarantee, (iii) in no event shall (A) the Parent Termination Fee, the Parent
Breakup Fee, any Company Expenses, or any Damages or other amounts due and
payable in connection therewith be due and payable on more than one occasion or
(B) the Merger Agreement Obligations (subject to the Maximum Cap), the Merger
Agreement Obligations (subject to the Financing Cap), the Merger Agreement
Obligations (subject to the Appraisal Rights Cap), and the Merger Agreement
Obligations (subject to the Damages Cap) each be due and payable in any
circumstance and (iv) to the extent the Company is awarded any Damages in
circumstances described in clause (z) above of the first sentence of this
Section 1, the obligations of Parent, Sub or the Investor hereunder shall be
limited to the Damages Cap with respect to such Damages. The Company
may, in its sole discretion, bring and prosecute a separate action or actions
against the Investor for the full amount of Merger Agreement Obligations
(subject to the Financing Cap, the Maximum Cap, the Appraisal Rights Cap, or the
Damages Cap as applicable), regardless of whether action is brought against
Parent or Sub or whether Parent or Sub is joined in any such action or actions;
provided, however, that the
Company understands and agrees that with respect to a recovery of any amounts
under clause (z) of the first sentence of this Section 1, the Company must first
bring a claim against Parent or Sub as required in such clause (z) (in which
claim Investor may be joined by the Company as a defendant solely for purposes
set forth in such clause (z)) and obtain a Judgment before requiring the
Investor to satisfy any payment obligations under such clause
(z). The Company hereby agrees that in no event and under no
circumstance shall the Investor be required to pay any amount to the Company
under, out of, in relation to, or in connection with this Limited
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Guarantee
or the Merger Agreement or the Transactions (including the transactions
contemplated hereby and by the Financing Commitments), other than as expressly
set forth herein. All payments hereunder shall be made in lawful
money of the United States, in immediately available funds. Investor
acknowledges and agrees that, in the event the Company brings a claim against
the Investor under this Limited Guarantee that the Company alleges is subject to
the Maximum Cap, the Financing Cap or the Damages Cap, as the case may be, and a
court of competent jurisdiction determines that such claim was properly subject
to the Financing Cap, the Appraisal Cap or the Damages Cap, as the case may be,
nothing contained herein shall preclude the Company from recovering damages
under this Limited Guarantee in connection with such claim up to the Financing
Cap, the Appraisal Cap or the Damages Cap, as the case may be.
2. NATURE OF THE
OBLIGATIONS. The Company shall not be obligated to file any
claim relating to the Obligations in the event that Parent or Sub become subject
to a bankruptcy, reorganization or similar proceeding, and the failure of the
Company to so file shall not affect the Investor’s obligations
hereunder. In the event that any payment to the Company hereunder is
rescinded or must otherwise be returned for any reason whatsoever, the Investor
shall remain liable hereunder with respect to the Merger Agreement Obligations
as if such payment had not been made (subject to the terms
hereof). This is an unconditional guarantee of payment and not of
collectability.
3. CHANGES IN OBLIGATIONS,
CERTAIN WAIVERS. The Investor agrees that the Company may at
any time and from time to time, without notice to or further consent of the
Investor, extend the time of payment of any of the Obligations, and may also
enter into any agreement with Parent or with any other Person interested in the
Transactions for the extension, renewal, payment, compromise, discharge or
release thereof, in whole or in part, or for any modification of the terms
thereof or of the Merger Agreement or any other agreement between the Company
and Parent or any such other Person without in any way impairing or affecting
the Investor’s obligations under this Limited Guarantee. The Investor
agrees that its obligations hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (a) the failure of the Company to
assert any claim or demand or to enforce any right or remedy against Parent or
any other Person interested in the Transactions; (b) any change in the time,
place or manner of payment of any of the Obligations or any rescission, waiver,
compromise, consolidation or other amendment or modification of any of the terms
or provisions of the Merger Agreement or any other agreement evidencing,
securing or otherwise executed in connection with any of the Obligations
(provided that any such change, rescission, waiver, compromise, consolidation or
other amendment or modification shall be subject to the prior written consent of
Parent to the extent required under the Merger Agreement or such other
agreement); (c) the addition, substitution or release of any entity or other
Person interested in the Transactions (provided that any such addition,
substitution or release shall be subject to the prior written consent of Parent
to the extent required under the Merger Agreement or such other agreement); (d)
any change in the corporate existence, structure or ownership of Parent or any
other Person interested in the Transactions; (e) any insolvency, bankruptcy,
reorganization or other similar proceeding affecting Parent or any other Person
interested in the Transactions; (f) any lack of validity or enforceability of
the Merger Agreement or any agreement or instrument relating thereto (in each
case against any person other than the Company), other than by reason of fraud
or willful misconduct by the Company; (g) the existence of any claim, set-off or
other
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right
which the Investor may have at any time against Parent or the Company, whether
in connection with the Obligations or otherwise; or (h) the adequacy of any
other means the Company may have of obtaining payment of any of the
obligations. To the fullest extent permitted by Law, the Investor
hereby expressly waives any and all rights or defenses arising by reason of any
Law which would otherwise require any election of remedies by the
Company. The Investor waives promptness, diligence, notice of the
acceptance of this Limited Guarantee and of the Obligations, presentment, demand
for payment, notice of non-performance, default, dishonor and protest, notice of
any obligations incurred and all other notices of any kind (except for notices
to be provided to Parent and its counsel in accordance with Section 9.02 of
the Merger Agreement), all defenses which may be available by virtue of any
valuation, stay, moratorium Law or other similar Law now or hereafter in effect,
any right to require the marshalling of assets of Parent or any other Person
interested in the Transactions, and all suretyship and guarantor defenses
generally (other than fraud or willful misconduct by the Company or any of the
Company Affiliates (as defined below), defenses to the payment of the
Obligations that are available to Parent and Sub and their respective Affiliates
under the Merger Agreement (and are not waived above) or breach by the Company
of this Limited Guarantee, each of the foregoing defenses being retained by the
Investor). The Investor acknowledges that it will receive substantial
direct and indirect benefits from the Transactions and that the waivers set
forth in this Limited Guarantee are knowingly made in contemplation of such
benefits.
The
Company hereby covenants and agrees that it shall not institute, and shall cause
the Company Specified Affiliates not to institute, in the name of or on behalf
of the Company or any Company Specified Affiliate, any proceeding or bring any
other claim arising under, out of, in relation to, or in connection with, the
Merger Agreement or the Transactions (including the transactions contemplated
hereby and by the Financing Commitments), against the Investor, or the Investor
Affiliates (as defined below) except for claims against the Investor under this
Limited Guarantee and claims pursuant to Section 9(c) and except for claims
by the Company against Parent or Sub pursuant to clause (z) of the first
sentence of Section 1. The Company shall not have any obligation to
proceed at any time or in any manner against, or exhaust any or all of the
Company’s rights against, any Person liable for any Obligations prior to
proceeding against the Investor hereunder; provided, however, that the
Company understands and agrees that with respect to a recovery of any amounts
under clause (z) of the first sentence of Section 1, the Company must first
bring a claim against Parent or Sub as required in such clause (z) (in which
claim Investor may be joined by the Company as a defendant solely for purposes
set forth in such clause (z)) and obtain a Judgment before requiring the
Investor to satisfy any payment obligations under such clause
(z). For purposes of this Limited Guarantee, “Company Affiliates”
means any Affiliate (including any Company Subsidiary) of the Company, any
former, current or future director, officer, employee, general and limited
partner, stockholder, manager, member, agent and other Representative of the
Company, any Company Subsidiary or any of their respective
Affiliates. The Investor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire
against Parent or Sub that arise from the existence, payment, performance, or
enforcement of the Investor’s Merger Agreement Obligations under or in respect
of this Limited Guarantee or any other agreement in connection therewith,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Company or any Company Affiliate against Parent, Sub or
any Specified Person, whether or not
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such
claim, remedy or right arises in equity or under contract, statute or common
Law, including, without limitation, the right to take or receive from Parent or
such other Person, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until the Merger Agreement Obligations and any other
amounts payable under this Limited Guarantee shall have been paid in full in
cash.
Notwithstanding
anything to the contrary contained in this Limited Guarantee, the Company hereby
agrees, on behalf of itself and, to the extent permitted by Law, the Company
Affiliates, that to the extent Parent is relieved by the parties to the Merger
Agreement (including the Company) of its payment obligations under the Merger
Agreement (including but not limited to Section 6.06(d),
Section 6.06(e) or Section 6.06(f) thereof), the Investor shall be
similarly relieved of its payment obligations under this Limited
Guarantee.
4. NO WAIVER; CUMULATIVE
RIGHTS. No failure on the part of the Company 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 the Company of any
right, remedy or power hereunder or under the Merger Agreement or otherwise
preclude any other or future exercise of any right, remedy or power
hereunder. Each and every right, remedy and power hereby granted to
the Company or allowed it by Law or other agreement shall be cumulative and not
exclusive of any other, and may be exercised by the Company at any time or from
time to time.
5. REPRESENTATIONS AND
WARRANTIES. The Investor hereby represents and warrants
that:
(a) the
execution, delivery and performance of this Limited Guarantee have been duly
authorized by all necessary action and do not contravene any provision of the
Investor’s organizational documents or any Law or Order or contractual
restriction binding on the Investor or its assets;
(b) all
consents, approvals, authorizations, permits of, filings with and notifications
to, any governmental authority necessary for the due execution, delivery and
performance of this Limited Guarantee by the Investor have been obtained or made
and all conditions thereof have been duly complied with, and no other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required in connection with the execution, delivery or performance of this
Limited Guarantee;
(c) this
Limited Guarantee constitutes a legal, valid and binding obligation of the
Investor, enforceable against the Investor in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar Laws affecting creditors’ rights
generally, and (ii) general equitable principles (whether considered in a
proceeding in equity or at Law);
(d) the
Investor has the financial capacity to pay and perform its obligations under
this Limited Guarantee when due, and all funds necessary for the Investor to
fulfill its Merger Agreement Obligations under this Limited Guarantee shall be
available to the Investor for so long as this Limited Guarantee shall remain in
effect in accordance with Section 8 hereof; and
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(e) the
Investor acknowledges that in consideration of the execution and delivery of the
Merger Agreement by the Company, the Company is relying on the commitments and
agreements made by the Investor in this Limited Guarantee.
6. NO
ASSIGNMENT. Neither the Investor nor the Company may assign
its respective rights, interests or obligations hereunder to any other Person
(except by operation of Law) without the prior written consent of the Company or
the Investor, as the case may be; provided, however, that
Investor may assign all or a portion of its obligations hereunder to an
Affiliate or to an entity managed or advised by an Affiliate of Investor (provided that no such
assignment shall relieve Investor of any liability or obligation as a primary
obligor hereunder (and not merely as a surety) except to the extent actually
performed or satisfied by the assignee, nor shall any such assignment require
the Company to seek payment of the Obligations from any other party prior to
enforcing its rights hereunder against the Investor).
7. NOTICES. All
notices, requests, claims, demands and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made to the receiving party (i) upon actual receipt, if delivered personally,
(ii) three Business Days after deposit in the mail, if sent by registered or
certified mail, (iii) upon confirmation of successful transmission if sent by
facsimile (provided, that if
given by facsimile, such notice or other communication shall be followed up
within one Business Day by dispatch pursuant to one of the other methods
described herein), or (iv) on the next Business Day after deposit with an
overnight courier, if sent by overnight courier, at the following addresses (or
at such other address for a party as shall be specified by like
notice):
If to the
Investor, to:
ONCAP
Investment Partners II L.P.
000 Xxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Facsimile:
(000) 000-0000
Attention:
Xxxx Xxxxxx
with a
copy to:
O’Melveny
& Xxxxx LLP
Times
Square Tower
0 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx X. Xxxxx, Esq. and Xxxx X. Xxxxxxxx, Esq.
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If to the
Company, to:
0000
Xxxxxxxx Xxxxx
Xxxxxxx
Xxxxxx, Xxxxx 00000
Telecopy
No.: (000) 000-0000
Attention:
General Counsel
with a
copy to:
Xxxxxx
& Xxxxxx LLP
Xxxxxxxx
Xxxx Center
0000 Xxxx
Xxxxxx
Xxxxx
0000
Xxxxxx,
XX 00000-0000
Telecopy
No.: (000) 000-0000
Attention:
Xxxx X. Xxxxxxxx, Esq.
8. CONTINUING
OBLIGATION. This Limited Guarantee shall remain in full force
and effect and shall be binding on the Investor, its successors and assigns
until all of the Merger Agreement Obligations have been indefeasibly paid in
full. Notwithstanding the foregoing, this Limited Guarantee shall
terminate and the Investor shall have no further obligations under this Limited
Guarantee as of the earlier of (i) the Effective Time, (ii) receipt in full by
the Company of the payment obligations of Parent that constitute the Obligations
(subject to the Financing Cap, the Maximum Cap, the Appraisal Rights Cap or the
Damages Cap, as applicable); provided that in the
event that the Company receives payment in full of the payment obligations of
Parent that constitute the Obligations and thereafter any portion of such
payment is rescinded or must otherwise be returned for any reason whatsoever,
this Agreement shall survive and the Investor shall remain liable hereunder with
respect to the Merger Agreement Obligations as if such payment had not been made
(subject to the terms hereof), and (iii) termination of the Merger Agreement
pursuant to Section 8.01 thereof under circumstances that do not give rise
to any payment obligations of Parent pursuant to the terms of the Merger
Agreement. Notwithstanding the foregoing but subject to the last
sentence of Section 1, in the event that the Company or any Company Specified
Affiliate (as defined below) asserts in any action, claim, litigation or other
proceeding that the provisions of Section 1 hereof limiting the Investor’s
liability to the amount of the Financing Cap, the Maximum Cap, the Appraisal
Rights Cap or the Damages Cap, as applicable, or the provisions of the second or
third paragraphs of Section 3, this Section 8 or Section 9 hereof
are illegal, invalid or unenforceable in whole or in part or asserting any
theory of liability in any action, claim, litigation or proceeding against the
Investor or any Investor Affiliates (as defined herein) with respect to the
Transactions (including the transactions contemplated hereby and by the
Financing Commitments) other than liability of the Investor under this Limited
Guarantee (as limited by the provisions of Section 1 and Section 3), then (i)
the obligations of the Investor under this Limited Guarantee shall terminate
ab initio and be null
and void, (ii) if the Investor has previously made any payments under this
Limited Guarantee, it shall be entitled to recover such payments, and (iii)
neither the Investor nor any Investor Affiliate shall have any liability to the
Company, any Company Affiliate with respect to the Transactions (including the
transactions contemplated hereby and by the Financing Commitments) under this
Limited Guarantee or otherwise. “Company Specified
Affiliate” means: (i) any Company
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Subsidiary;
(ii) any director or officer of the Company or any Company Subsidiary; (iii) any
employee, general and limited partner, stockholder, Affiliate, manager, member,
agent, former director or officer and other Representative of the Company or any
Company Subsidiary, in each case, that is controlled by the Company
or that the Company requests or knowingly encourages to bring any action, claim,
litigation or proceeding related to this Limited Guarantee; and/or (iv)
Xxxxxxx Capital, L.P., Black Diamond Offshore Ltd., Double Black Diamond
Offshore Ltd. or any of their respective directors, officers, controlling
persons, subsidiaries or affiliated investment funds.
9. NO
RECOURSE.
(a) Notwithstanding
anything that may be expressed or implied in this Limited Guarantee or any
document or instrument delivered in connection herewith, and notwithstanding the
fact that the Investor may be a partnership or limited liability company, but
subject to Section 9(c), by its acceptance of the benefits of this Limited
Guarantee, the Company acknowledges and agrees, on behalf of itself and to the
extent permitted by Law, the Company Affiliates, that no such Person has any
right of recovery against, and no personal liability shall attach to, the
former, current or future security holders, directors, officers, employees,
agents, Affiliates, members, managers, general or limited partners, assignees or
Representatives of the Investor, Parent, Sub or any former, current or future
security holder, director, officer, employee, general or limited partner,
member, manager, Affiliate, agent, assignee or Representative of any of the
foregoing (collectively, including Parent and Sub, the “Investor
Affiliates”), through Parent or otherwise, whether by or through
attempted piercing of the corporate, partnership or limited liability company
veil, by or through a claim by or on behalf of Parent against the Investor or
any Investor Affiliates (including a claim to enforce the equity commitment
letter dated as of the date hereof between the Investor and Parent) by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any applicable Law, or otherwise, except for its rights to recover from the
Investor (but not any Investor Affiliates) its Merger Agreement Obligations
under and to the extent provided in this Limited Guarantee, subject to the
limitations described herein (including the Financing Cap, the Maximum Cap, the
Appraisal Rights Cap or the Damages Cap, as the case may be). Subject
to Section 9(c), in the event that the Closing does not occur, recourse
against the Investor under this Limited Guarantee shall be the sole and
exclusive remedy of the Company and all of the Company Affiliates against the
Investor and the Investor Affiliates (including Parent and Sub) in respect of
any liabilities or obligations arising under, out of, in relation to, or in
connection with, the Merger Agreement or the Transactions (including the
transactions contemplated hereby and by the Financing Commitments); provided, however, that it is
understood and agreed that the Company may bring a claim against Parent or Sub
pursuant to clause (z) of the first sentence of Section 1. Nothing
set forth in this Limited Guarantee shall be construed to confer or give to any
Person (including any Person acting in a Representative capacity) other than the
Company and the Investor any rights or remedies against any Person other than
the Company and the Investor as expressly set forth herein.
(b) The
Company acknowledges that the Investor is agreeing to enter into this Limited
Guarantee in reliance on the provisions set forth in this
Section 9. This Section 9 shall survive termination of this
Limited Guarantee.
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(c) Notwithstanding
anything to the contrary contained herein, nothing in this Limited Guarantee or
in any other agreement shall prevent the Company from seeking to enforce
Sections 6.07, 9.10, 9.11 and 9.12(c) of the Merger Agreement against any party
thereto or the Confidentiality Agreement against Parent, Sub or any other Person
subject thereto (including any successor or assign thereof).
10. GOVERNING
LAW. This Limited Guarantee shall be governed by and construed
in accordance with the Laws of the State of Delaware (without giving effect to
choice of Law principles thereof that would result in the application of the
Laws of another jurisdiction).
11. Jurisdiction; Venue.
The parties hereto hereby (a) submit to the exclusive personal jurisdiction of
the Court of Chancery of the State of Delaware, New Castle County, or, if that
court does not have jurisdiction, a federal court sitting in Delaware in the
event any dispute arises out of this Limited Guarantee or any transaction
contemplated hereby, for the purpose of any Action arising out of or relating to
this Limited Guarantee or any transaction contemplated hereby brought by any
party hereto, and (b) irrevocably waive, and agree not to assert by way of
motion, defense, or otherwise, in any such Action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or
that this Limited Guarantee may not be enforced in or by any of the above-named
courts.
12 WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS LIMITED GUARANTEE. EACH OF THE PARTIES HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION,
SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTY BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 12.
13. COUNTERPARTS. This
Agreement may be executed in one or more counterparts, including via facsimile,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties. The terms “include”, “includes”
or “including”, when used herein, shall be deemed followed by “without
limitation”, unless the context expressly otherwise requires.
14. ENTIRE
AGREEMENT. This Limited Guarantee constitutes the entire
agreement with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the transactions contemplated hereby.
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(Signature
pages follow)
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| Very truly yours, | ||
| ONCAP INVESTMENT PARTNERS II L.P. | ||
|
By:
|
ONCAP Investment Partners II Inc., its
general partner
|
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|
By:
|
/s/
Xxxxxxx
Xxx
|
|
|
Name:
Xxxxxxx Xxx
|
||
|
Title:
Vice President
|
||
| Acknowledged and accepted: | ||
| SPORT SUPPLY GROUP, INC. | ||
|
By:
|
/s/
Xxxxxxxx X.
Xxxxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxxxx
|
||
|
Title:
President
|
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