Exhibit 8
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
CB Xxxxxxx Xxxxx Services, Inc. 2
February 23, 2001
equal to the unpaid Obligation then due and owing, up to a maximum of
$20,000,000. 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
CB Xxxxxxx Xxxxx Services, Inc. 3
February 23, 2001
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 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:
----------------------------
Name: Claus X. Xxxxxx
Title:
Agreed to and accepted as of the
date first set forth above:
CB XXXXXXX XXXXX SERVICES, INC.
By:
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
