Exhibit 10.1
EXECUTION COPY
LIMITED
GUARANTEE
OF
HELLMAN &
FRIEDMAN CAPITAL PARTNERS VI, L.P.
LIMITED GUARANTEE,
dated as of April 17, 2007 (this “ Limited Guarantee
”), by Hellman & Friedman Capital Partners VI, L.P.
(“ Guarantor ”) in favor of Catalina Marketing
Corporation, a Delaware corporation (the “ Company
”). Any capitalized term not otherwise defined herein shall
be as defined in the Merger Agreement (as defined
below).
1.
LIMITED GUARANTEE . To induce the Company to enter into that
certain Agreement of Merger, dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the
“ Merger Agreement ”), by and among the Company,
Checkout Holding Corp., a Delaware corporation (“
Parent ”), and Checkout Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent (“
Merger Sub ,” and together with Parent, the “
Parent Parties ”), the Guarantor absolutely,
unconditionally and irrevocably guarantees to the Company, on the
terms and conditions set forth herein, the due, punctual and
complete payment and performance, if and when due, of (i) 100% of
Parent's payment obligation with respect to the Parent Termination
Fee pursuant to and only in accordance with Section 7.3(d) of the
Merger Agreement and any additional amounts that may become due
pursuant to Section 7.3(e) of the Merger Agreement, and (ii) any
other obligations of Parent under the Merger Agreement as a result
of a breach thereof by Parent or Merger Sub (the payment
obligations referred to above (collectively, the “
Obligations ”); provided that the maximum aggregate
amount payable by the Guarantor under this Limited Guarantee
(exclusive of the reimbursement of costs and expenses, if
applicable, pursuant to and only in accordance with Section 16
hereof (such payment, if and only if required to be paid by
Guarantor in accordance with the terms hereof, the “
Prevailing Party Costs ”)) shall not exceed the
aggregate of $50,640,000 U.S. Dollars (the “ Cap
”), it being understood that this Limited Guarantee may not
be enforced without giving effect to the Cap. Except for Prevailing
Party Costs, the Company hereby agrees that in no event shall the
Guarantor be required to pay to any Person under, in respect of, or
in connection with this Limited Guarantee, more than the Cap, and
that Guarantor shall not have any obligation or liability to any
Person relating to, arising out of or in connection with, this
Limited Guarantee or the Merger Agreement other than as expressly
set forth herein. All sums payable by the Guarantor hereunder shall
be made in immediately available funds. The Company may, in its
sole discretion, bring and prosecute a separate action or actions
against the Guarantor for the full payment of the Obligations,
subject to the Cap (plus any Prevailing Party Costs), regardless of
whether the action is brought against one or both of the Parent
Parties or whether one or both of the Parent Parties is joined in
any such action or actions.
2.
NATURE OF LIMITED GUARANTEE.
(a) The
Company shall not be obligated to file any claim relating to the
Obligations in the event that one or both of the Parent Parties
becomes subject to a bankruptcy, reorganization or similar
proceeding, and the failure of the Company to so file shall not
affect the Guarantor’s obligations hereunder. In the event
that any payment to the Company in respect of the Obligations is
rescinded or must otherwise be returned for any reason whatsoever,
the Guarantor shall remain liable hereunder with respect to the
Obligations (plus any Prevailing Party Costs) as if such payment
had not been made (subject to the terms hereof). This is
an
unconditional
guarantee of payment and not of collectibility. Notwithstanding any
other provision of this Limited Guarantee, the Company hereby
agrees that (i) the Guarantor may assert, as a defense to any
payment or performance by the Guarantor under this Limited
Guarantee, any defense to such payment or performance that Parent
or Merger Sub could assert against the Company under the terms of
the Merger Agreement, other than any such defense exclusively
arising out of, due to, or as a result of, the insolvency or
bankruptcy of Parent or Merger Sub and (ii) to the extent Parent
and Merger Sub are relieved by the parties to the Merger Agreement
(including the Company) of their obligations under Section 7.3(d)
of the Merger Agreement, the Guarantor shall be similarly relieved
of its Obligations under this Limited Guarantee.
(b) The
Company hereby acknowledges and agrees that, as of the date hereof,
each of Parent’s and Merger Sub’s sole assets are a
de minimis amount of cash and their respective rights under
the Merger Agreement, and that no additional funds or assets are
expected to be contributed to Parent or Merger Sub unless and until
the Closing occurs.
(c) Notwithstanding
anything that may be expressed or implied in this Limited Guarantee
or any document or instrument delivered contemporaneously herewith,
and notwithstanding the fact that the Guarantor may be a limited
partnership, by its acceptance of the benefits of this Limited
Guarantee, the Company covenants and agrees that (1) neither the
Company nor any of its Subsidiaries or Affiliates, and the Company
agrees to the maximum extent permitted by Legal Requirement, none
of its officers, directors, security holders or representatives,
has or shall have any right of recovery under or in connection with
the Merger Agreement or the transactions contemplated thereby or
otherwise relating thereto, and to the extent that it has or
obtains any such right, it, to the maximum extent permitted by
Legal Requirement, hereby waives (on its own behalf and on behalf
of each of the aforementioned persons) each and every such right
against, and hereby releases, and no personal liability shall
attach to, the Guarantor or any of the Sponsor Affiliates (as
defined below), from and with respect to any claim, known or
unknown, now existing or hereafter arising, in connection with any
transaction contemplated by or otherwise relating to the Merger
Agreement or the transactions contemplated thereby, whether by or
through attempted piercing of the limited liability company veil,
by or through a claim by or on behalf of Parent or Merger Sub (or
any other Person) against any Sponsor Affiliate (including, without
limitation, a claim to enforce the Equity Commitment Letter, by the
enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute, regulation or applicable
Legal Requirement, or otherwise) (the “ Released
Claims ”), except for its rights to recover from the
Guarantor (but not any Sponsor Affiliate (including, without
limitation, any general partner or managing member)) under and to
the extent provided in this Limited Guarantee (subject to the
limitations described herein); and (2) recourse against the
Guarantor under this Limited Guarantee (subject to the limitations
described herein) shall be the sole and exclusive remedy of the
Company and all of its Subsidiaries and Affiliates against the
Guarantor and each Sponsor Affiliate in respect of any liabilities
or obligations arising under, or in connection with, the Merger
Agreement or the transactions contemplated thereby or otherwise
relating thereto. For purposes of this Limited Guarantee, "Sponsor
Affiliate" means, collectively, any former, current or future
director, officer, employee, agent, general or limited partner,
manager, member, stockholder, Affiliate (other than Parent or
Merger Sub) or assignee of the undersigned or any Sponsor Affiliate
or any former, current or future director, officer, employee,
agent, general or limited partner, manager,
[LIMITED
GUARANTEE]
member,
stockholder, Affiliate (other than Parent or Merger Sub) or
assignee of any of the foregoing.
(d) The
Company hereby covenants and agrees that it shall not institute,
directly or indirectly, and shall cause its Subsidiaries and
Affiliates not to institute, in the name of or on behalf of the
Company or any other Person, any proceeding or bring any other
claim arising under, or in connection with, the Merger Agreement or
the transactions contemplated thereby or otherwise relating
thereto, against the Guarantor or the Sponsor Affiliates except for
claims against the Guarantor under this Limited Guarantee (subject
to the limitations described herein).
(e) The
Company acknowledges that the Guarantor is agreeing to enter into
this Limited Guarantee in reliance on the provisions set forth in
Sections 2(b) through (e). Section 2(b), 2(c), 2(d) and 2(e) shall
survive termination of this Limited Guarantee.
3.
CHANGES IN OBLIGATIONS; CERTAIN WAIVERS . The Guarantor
agrees that the Company may at any time and from time to time,
without notice to or further consent of the Guarantor, extend the
time of payment of any of the Obligations, and also may make any
agreement with one or both of the Parent Parties 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 any agreement between the Company, on the one hand, and one or
both of the Parent Parties, on the other hand, without in any way
impairing or affecting the Guarantor’s obligations under this
Limited Guarantee. The Guarantor agrees that the obligations of the
Guarantor 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 one or both of the Parent Parties or any Other
Guarantor; (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 the
Parent Parties to the extent expressly required by the Merger
Agreement); (c) the addition, substitution or release of any Person
interested in the transactions contemplated by the Merger Agreement
(provided, that any such addition, substitution or release shall be
subject to the prior written consent of the Parent Parties to the
extent expressly required under the Merger Agreement); (d) any
change in the corporate or limited liability company existence,
structure or ownership of one or both of the Parent Parties or any
other Person liable with respect to any of the Obligations; (e) any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting one or both of the Parent Parties, or any other Person
liable with respect to any of the Obligations; (f) subject to the
last sentence of Section 2(a) hereof, any lack of validity or
enforceability of the Merger Agreement or any agreement or
instrument relating thereto; (g) the existence of any claim,
set-off or other rights which the Guarantor may have a
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