LIMITED GUARANTEE
Dated as of April 25, 2022
Executed by
ARDENT CAPITAL GP III LLC
a Delaware limited liability company
("Guarantor")
in favor of
CORAL REEF HOSPITALITY GROUP, INC.
a Delaware corporation
(the "Guaranteed Party" or the "Company")
This LIMITED GUARANTEE (this "Limited Guarantee"), dated as of April 25, 2022, is executed and delivered by Ardent Capital GP III LLC, a Delaware limited liability company ("Guarantor"), in favor of Coral Reef Hospitality Group, Inc., a Delaware corporation (the "Guaranteed Party" or the "Company"). Reference is made to that certain Agreement and Plan of Merger, dated as of April 25, 2022 (as it may be amended, supplemented, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), among Ardent Capital Partners III LP, a Delaware limited partnership ("Parent" or "Buyer"), CRFH Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Coral Reef Hospitality Group, Inc. (the "Company"). Guarantor is the general partner of Parent. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
RECITALS
WHEREAS, Parent, Merger Sub, and the Company have entered into the Merger Agreement, dated as of the date hereof, providing for a reverse triangular merger pursuant to Section 251 of the General Corporation Law of the State of Delaware (the "DGCL"), whereby Merger Sub will merge with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of Parent;
WHEREAS, the Merger Agreement provides for all-cash merger consideration of Four Dollars and Seventy-Five Cents ($4.75) per share of common stock, par value $0.001 per share, of the Company (the "Common Stock"), representing an aggregate equity value of Thirty Million Dollars ($30,000,000) based on 6,315,789 shares of Common Stock issued and outstanding as of the date hereof;
WHEREAS, Guarantor is the general partner of Parent, having been duly organized under the laws of the State of Delaware, with Employer Identification Number 13-6291048;
WHEREAS, as a material inducement for the Company to enter into the Merger Agreement and to consummate the transactions contemplated thereby, including the Merger, Guarantor has agreed to guarantee certain obligations of Parent under the Merger Agreement, subject to and in accordance with the terms and conditions set forth herein; and
WHEREAS, Guarantor will directly and indirectly benefit from the consummation of the transactions contemplated by the Merger Agreement, and acknowledges that the Company would not have entered into the Merger Agreement but for Guarantor's execution and delivery of this Limited Guarantee.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby agrees as follows:
SECTION 1: GUARANTEE
1.1 Guarantee of Obligations.
Guarantor hereby absolutely, unconditionally, and irrevocably guarantees to the Company, as primary obligor and not merely as surety, the due and punctual payment and performance of the "Guaranteed Obligations" (as defined below) in accordance with the terms of this Limited Guarantee. As used herein, the term "Guaranteed Obligations" shall mean the payment obligations of Parent to the Company under or in connection with the Merger Agreement, including, without limitation:
(a) the Reverse Termination Fee in the amount of One Million Two Hundred Thousand Dollars ($1,200,000) (representing four percent (4.0%) of the aggregate equity value of Thirty Million Dollars ($30,000,000)) payable by Parent pursuant to Section 8.3(b) of the Merger Agreement (the "Reverse Termination Fee"); and
(b) any reimbursement obligations or expense obligations of Parent payable to the Company pursuant to the Merger Agreement in connection with or related to the payment of the Reverse Termination Fee, including any costs and expenses incurred by the Company in enforcing its right to receive the Reverse Termination Fee.
Cap on Guaranteed Obligations. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other agreement, document, or instrument, the aggregate liability of Guarantor under this Limited Guarantee shall in no event exceed One Million Two Hundred Thousand Dollars ($1,200,000) (such amount, the "Cap"). In no circumstance shall the Company be entitled to recover, and Guarantor shall not be required to pay, any amount under or in connection with this Limited Guarantee that, together with any amounts previously paid by Guarantor hereunder, exceeds the Cap.
1.2 Nature of Guarantee.
This Limited Guarantee constitutes a guarantee of payment and not a guarantee of collection. The Company shall not be required to proceed against Parent, Merger Sub, or any other person, or to pursue or exhaust any other remedy or enforce any other right against Parent, Merger Sub, or any other person, before proceeding against Guarantor hereunder. Guarantor agrees that the Company may, in its sole discretion, bring and prosecute a separate action or actions against Guarantor for the full amount of the Guaranteed Obligations (subject to the Cap), regardless of whether any action is brought against Parent, Merger Sub, or any other person, and regardless of whether Parent, Merger Sub, or any other person is joined in any such action or actions. The obligations of Guarantor under this Limited Guarantee are primary and not secondary, and Guarantor's liability hereunder shall not be contingent upon the exercise or enforcement by the Company of any remedy it may have against Parent, Merger Sub, or any other person.
SECTION 2: TERMS OF GUARANTEE
2.1 Unconditional Nature.
The obligations of Guarantor under this Limited Guarantee are absolute, unconditional, and irrevocable, and shall not be subject to any counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment, discount, or defense (other than indefeasible payment in full of the Guaranteed Obligations or the express conditions and limitations set forth in this Limited Guarantee) based upon any claim that Guarantor or any other person may have against the Company, Parent, Merger Sub, or any other person. Without limiting the generality of the foregoing, the obligations of Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged, or in any way affected by, any of the following:
(a) any modification, amendment, supplement, or waiver of any provision of the Merger Agreement (whether or not such modification, amendment, supplement, or waiver is material), unless such modification, amendment, supplement, or waiver has been consented to in writing by Guarantor;
(b) any change in the corporate existence, structure, or ownership of Parent or Merger Sub, including, without limitation, any restructuring, merger, consolidation, sale of assets, dissolution, or change of control of Parent or Merger Sub, or any change in the relationship between Guarantor and Parent;
(c) the commencement or pendency of any bankruptcy, insolvency, reorganization, receivership, moratorium, arrangement, adjustment, composition, assignment for the benefit of creditors, liquidation, or similar proceeding involving or affecting Parent, Merger Sub, or any of their respective assets, including any discharge of, or bar or stay against collecting, any of the Guaranteed Obligations in or as a result of any such proceeding;
(d) the existence of any claim, set-off, defense, reduction, or other right that Parent, Merger Sub, or any other person may have at any time against the Company, whether in connection with the Merger Agreement, this Limited Guarantee, or any other agreement, transaction, or matter whatsoever;
(e) any lack of validity or enforceability of the Merger Agreement or any other agreement or instrument relating to the Guaranteed Obligations;
(f) any impossibility or impracticability of performance, illegality, force majeure, or act of any governmental authority;
(g) any failure of the Company to mitigate damages resulting from any breach or default by Parent or Merger Sub under the Merger Agreement; or
(h) any other act, omission, circumstance, or event that might otherwise constitute a legal or equitable discharge of, or defense available to, a surety or guarantor, whether similar or dissimilar to the foregoing.
Guarantor hereby acknowledges that the foregoing waivers are of the essence of the transaction contemplated by the Merger Agreement and this Limited Guarantee, and that but for the provisions of this Section 2.1 and the waivers contained herein, the Company would not have entered into the Merger Agreement.
2.2 Waiver. Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted by applicable law:
(a) notice of acceptance of this Limited Guarantee by the Company;
(b) notice of any default or non-performance by Parent or Merger Sub under the Merger Agreement or any other agreement or instrument;
(c) diligence, presentment, demand of payment, filing of claims with a court in the event of a receivership, insolvency, or bankruptcy of Parent or Merger Sub, protest, notice of protest, notice of dishonor, and all other notices whatsoever;
(d) any right to require the Company to proceed against Parent, Merger Sub, or any other person or to pursue or exhaust any other remedy or enforce any other right before proceeding against Guarantor under this Limited Guarantee;
(e) any defense based on any right of set-off or counterclaim against or in respect of the obligations of Guarantor hereunder;
(f) any defense based upon the statute of limitations applicable to the Guaranteed Obligations, to the extent such defense is waivable under applicable law; and
(g) any and all other defenses, rights, and benefits that Guarantor might otherwise be entitled to under the laws of the State of Delaware or any other jurisdiction, including, without limitation, any defenses that Guarantor might otherwise have under applicable suretyship law or principles of equity.
SECTION 3: LIMITATION ON GUARANTEE
3.1 Cap. For the avoidance of doubt, and notwithstanding anything to the contrary set forth in this Limited Guarantee or any other agreement, document, or instrument, the maximum aggregate liability of Guarantor under this Limited Guarantee shall not exceed One Million Two Hundred Thousand Dollars ($1,200,000) (the "Cap"). The Company's remedies against Guarantor under this Limited Guarantee are limited solely to the recovery of the Guaranteed Obligations, and in no event shall the aggregate amount of the Guaranteed Obligations for which Guarantor is liable hereunder exceed the Cap. Once the aggregate amount paid by Guarantor under this Limited Guarantee equals the Cap, Guarantor shall have no further obligation or liability to the Company under this Limited Guarantee.
3.2 No Other Obligations.
Except for the Guaranteed Obligations as expressly set forth herein, Guarantor shall have no obligation, liability, or responsibility of any kind or nature whatsoever under this Limited Guarantee. Without limiting the generality of the foregoing:
(a) This Limited Guarantee does not guarantee any obligation of Parent or Merger Sub other than the Guaranteed Obligations, including, without limitation, any obligation of Parent or Merger Sub to consummate the Merger or to pay the aggregate Merger consideration;
(b) Guarantor shall not be liable for any consequential, incidental, special, punitive, or exemplary damages in connection with this Limited Guarantee or the Guaranteed Obligations;
(c) No right of contribution, subrogation, reimbursement, exoneration, or indemnity shall be exercised by Guarantor against Parent, Merger Sub, or any of their respective assets until all Guaranteed Obligations have been indefeasibly satisfied in full; and
(d) The Company acknowledges and agrees that its sole and exclusive remedy against Guarantor under this Limited Guarantee is limited to the Guaranteed Obligations up to the Cap, and the Company shall not seek to recover any other amounts from Guarantor in connection with the Merger Agreement, the Merger, or any of the transactions contemplated thereby.
3.3 Relationship to Merger Agreement.
This Limited Guarantee is given in connection with and as a material inducement for the Company's execution and delivery of the Merger Agreement and its agreement to consummate the transactions contemplated thereby. The obligations of Guarantor hereunder are subject to the same conditions, limitations, and qualifications applicable to the Reverse Termination Fee under Section 8.3(b) of the Merger Agreement. In no event shall the Company be entitled to recover under this Limited Guarantee amounts in excess of the amounts that the Company is entitled to recover from Parent under the Merger Agreement in respect of the Guaranteed Obligations. To the extent the Merger Agreement provides that the Reverse Termination Fee is not payable in certain circumstances, the obligations of Guarantor under this Limited Guarantee shall be correspondingly limited. In the event of any conflict between the terms of this Limited Guarantee and the terms of the Merger Agreement with respect to the conditions to, or limitations on, the payment of the Reverse Termination Fee, the terms of the Merger Agreement shall control.
SECTION 4: REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor hereby represents and warrants to the Company as follows as of the date hereof:
4.1 Organization and Standing.
Guarantor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Guarantor has all requisite limited liability company power and authority to own, lease, and operate its properties and to carry on its business as now being conducted. Guarantor's principal office is located at 590 Madison Avenue, 38th Floor, New York, New York 10022. Guarantor's Employer Identification Number is 13-6291048.
4.2 Authority; Enforceability.
Guarantor has the requisite limited liability company power and authority to execute, deliver, and perform its obligations under this Limited Guarantee. The execution, delivery, and performance of this Limited Guarantee by Guarantor have been duly and validly authorized by all necessary limited liability company action on the part of Guarantor, and no other limited liability company proceedings on the part of Guarantor are necessary to authorize the execution, delivery, or performance of this Limited Guarantee. This Limited Guarantee has been duly and validly executed and delivered by Guarantor and constitutes the legal, valid, and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, subject to (a) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights and remedies generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) (clauses (a) and (b) collectively, the "Enforceability Exceptions").
4.3 No Conflicts.
The execution, delivery, and performance of this Limited Guarantee by Guarantor does not and will not:
(a) violate, conflict with, or result in a breach of any provision of the certificate of formation, limited liability company agreement, or any other organizational or governing document of Guarantor;
(b) violate, conflict with, or result in a breach of any applicable law, statute, ordinance, rule, regulation, order, judgment, injunction, or decree of any governmental authority applicable to Guarantor or any of its properties or assets; or
(c) result in a breach of, constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, give rise to a right of termination, cancellation, or acceleration of any obligation under, or result in the creation of any lien upon any of the properties or assets of Guarantor under, any material contract, agreement, indenture, mortgage, deed of trust, license, permit, or other instrument or obligation to which Guarantor is a party or by which Guarantor or any of its properties or assets may be bound or affected.
4.4 Sufficiency of Funds.
Guarantor has, or will have at or prior to the time the Guaranteed Obligations become due and payable, sufficient funds or access to sufficient funds (whether through capital calls to its limited partners, credit facilities, or otherwise) to satisfy the Guaranteed Obligations up to the Cap. Guarantor acknowledges that its obligations under this Limited Guarantee are not conditioned upon the availability of funding from any particular source, and the failure of Guarantor to obtain funding from any source shall not relieve Guarantor of its obligations hereunder.
SECTION 5: COVENANTS
5.1 Maintenance of Existence.
Guarantor covenants and agrees that, during the term of this Limited Guarantee, Guarantor shall maintain its existence as a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and shall not dissolve, liquidate, wind up, or otherwise terminate its existence without the prior written consent of the Company, unless a successor entity assumes all of Guarantor's obligations under this Limited Guarantee pursuant to an instrument of assumption in form and substance reasonably acceptable to the Company.
5.2 No Transfer of Assets to Avoid Obligations.
Guarantor covenants and agrees that it shall not, directly or indirectly, transfer, convey, distribute, or otherwise dispose of all or substantially all of its assets, or take any action to dissolve, liquidate, wind up, merge, consolidate, or otherwise restructure its affairs, with the intent of avoiding, frustrating, impairing, or delaying Guarantor's ability to satisfy its obligations under this Limited Guarantee. Any transfer, conveyance, distribution, or disposition of assets made in violation of this Section 5.2 shall be void and of no force or effect as against the Company.
5.3 Notice of Default.
Guarantor shall promptly (and in any event within five (5) business days after becoming aware thereof) notify the Company in writing if Guarantor becomes aware of any event, condition, or circumstance that would give rise to, or would reasonably be expected to give rise to, a payment obligation of Parent constituting a Guaranteed Obligation, or any event, condition, or circumstance that would materially impair Guarantor's ability to satisfy its obligations under this Limited Guarantee.
SECTION 6: TERMINATION
6.1 Termination Events.
This Limited Guarantee shall terminate and be of no further force or effect, and Guarantor shall have no further obligation or liability hereunder, upon the earliest to occur of the following:
(a) the Closing (as defined in the Merger Agreement), at which time all obligations of Parent with respect to the Reverse Termination Fee shall be deemed satisfied and extinguished;
(b) the valid termination of the Merger Agreement in accordance with its terms in circumstances where the Reverse Termination Fee is not payable by Parent pursuant to Section 8.3(b) of the Merger Agreement;
(c) the indefeasible payment in full of all Guaranteed Obligations (including, if applicable, the Reverse Termination Fee of One Million Two Hundred Thousand Dollars ($1,200,000) and any related reimbursement or expense obligations); and
(d) the mutual written agreement of Guarantor and the Company to terminate this Limited Guarantee.
Upon the occurrence of any termination event described in this Section 6.1, this Limited Guarantee shall automatically terminate and be of no further force or effect without any further action by any party, and Guarantor shall have no further obligation, liability, or responsibility under this Limited Guarantee; provided, however, that such termination shall not release Guarantor from any liability arising from a breach of this Limited Guarantee occurring prior to such termination.
6.2 Survival Post-Termination of Merger Agreement.
Notwithstanding Section 6.1, if the Merger Agreement is terminated under circumstances where the Reverse Termination Fee becomes payable by Parent pursuant to Section 8.3(b) of the Merger Agreement, this Limited Guarantee shall survive such termination of the Merger Agreement and shall remain in full force and effect until the earlier to occur of (a) the indefeasible payment in full of all Guaranteed Obligations and (b) the date on which the Company has waived in writing its right to receive payment of the Reverse Termination Fee and all other Guaranteed Obligations. The provisions of this Section 6.2 shall apply notwithstanding any other provision of this Limited Guarantee or the Merger Agreement to the contrary.
SECTION 7: SUBROGATION
Guarantor shall not exercise, and hereby irrevocably waives, any rights of subrogation, reimbursement, exoneration, contribution, indemnification, or any other right or remedy that Guarantor may now have or hereafter acquire against Parent, Merger Sub, or any of their respective assets in respect of any amounts paid by Guarantor pursuant to this Limited Guarantee, in each case unless and until all Guaranteed Obligations have been indefeasibly paid and satisfied in full. If any amount shall be paid to Guarantor on account of any such subrogation, reimbursement, or other right or remedy at any time when the Guaranteed Obligations shall not have been paid in full, such amount shall be received and held by Guarantor in trust for the benefit of the Company and shall be promptly paid to the Company to be credited and applied against the Guaranteed Obligations, whether matured or unmatured. The provisions of this Section 7 shall survive the termination of this Limited Guarantee until all Guaranteed Obligations have been indefeasibly paid and satisfied in full.
SECTION 8: NO RECOURSE BEYOND GUARANTOR
The Company's recourse under this Limited Guarantee is solely against Guarantor and its assets. Notwithstanding anything to the contrary contained in this Limited Guarantee, the Merger Agreement, or any other agreement, document, or instrument, no past, present, or future direct or indirect director, officer, employee, member, partner (whether general or limited), manager, agent, advisor, representative, or affiliate of Guarantor (other than Guarantor itself in its capacity as guarantor hereunder), and no past, present, or future direct or indirect director, officer, employee, member, partner (whether general or limited), manager, agent, advisor, representative, or affiliate of any of the foregoing, shall have any personal liability whatsoever under this Limited Guarantee or any claim based on, in respect of, or by reason of such obligations or their creation. Without limiting the generality of the foregoing, and for the avoidance of doubt, no personal recourse shall be sought or had against Julian Rask, Nadia Ferrante, or any other individual member, principal, limited partner, or equity holder of Guarantor or Parent, in their respective individual capacities, in connection with or relating to this Limited Guarantee, the Merger Agreement, or any of the transactions contemplated hereby or thereby. The provisions of this Section 8 shall survive the termination of this Limited Guarantee.
SECTION 9: AMENDMENTS AND WAIVERS
This Limited Guarantee may not be amended, modified, supplemented, restated, or otherwise changed except by a written instrument duly executed and delivered by each of Guarantor and the Company. No waiver of any provision of this Limited Guarantee shall be effective unless such waiver is set forth in a written instrument duly executed and delivered by the party against whom such waiver is to be enforced. No failure or delay on the part of the Company or Guarantor in exercising any right, power, or privilege under this Limited Guarantee shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies of the Company under this Limited Guarantee are cumulative and are not exclusive of any rights or remedies that the Company may otherwise have.
SECTION 10: NOTICES
All notices, requests, demands, consents, waivers, and other communications required or permitted under this Limited Guarantee shall be in writing and shall be deemed to have been duly given and received (a) upon personal delivery to the party to be notified, (b) when sent by confirmed facsimile or electronic mail (with a copy sent by one of the other methods described herein) if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) one (1) business day after deposit with a nationally recognized overnight courier service, specifying next-day delivery, with written verification of receipt, or (d) three (3) business days after deposit in the United States mail, registered or certified, return receipt requested, with proper postage prepaid, in each case addressed to the party to be notified at the following address (or at such other address as a party may designate by ten (10) days' prior written notice to the other parties in accordance with this Section 10):
If to Guarantor:
Ardent Capital GP III LLC 590 Madison Avenue, 38th Floor New York, New York 10022
Attention: Julian Rask, Managing Partner; Tomás Iglesias, Principal
Email: jrask@ardentcapital.com; tiglesias@ardentcapital.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 1301 Avenue of the Americas, 40th Floor New York, New York 10019
Attention: Harrison Wexford, Esq.
Email: hwexford@calderwoodharkness.com
If to the Company:
Coral Reef Hospitality Group, Inc. 2400 Bayshore Boulevard, Suite 300 Tampa, Florida 33629
Attention: Marcus Ellender, Chief Executive Officer; Patricia Sung, Chief Financial Officer
Email: mellender@coralreefhospitality.com; psung@coralreefhospitality.com
with a copy (which shall not constitute notice) to:
Whitfield, Crane & Sato LLP One Southeast Financial Center, Suite 4200 Miami, Florida 33131
Attention: Catherine Osei, Esq.
Email: cosei@whitfieldcrane.com
SECTION 11: GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL
11.1 Governing Law.
This Limited Guarantee and all claims or causes of action (whether in contract, tort, or otherwise) that may be based upon, arise out of, or relate to this Limited Guarantee, or the negotiation, execution, or performance of this Limited Guarantee, shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
11.2 Jurisdiction and Venue.
Each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any state court or federal court of the United States of America sitting in the State of Delaware) for the purposes of any action, suit, or proceeding arising out of or relating to this Limited Guarantee or the transactions contemplated hereby, and agrees not to commence any such action, suit, or proceeding except in such courts. Each of the parties hereto further agrees that service of process, summons, notice, or document by registered mail to such party's address set forth in Section 10 shall be effective service of process for any such action, suit, or proceeding. Each of the parties hereto irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a defense, counterclaim, or otherwise, in any such action, suit, or proceeding: (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to serve process in accordance with this Section 11.2; (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment, or otherwise); and (c) to the fullest extent permitted by applicable law, any claim that (i) the suit, action, or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action, or proceeding is improper, or (iii) this Limited Guarantee, or the subject matter hereof, may not be enforced in or by such courts.
11.3 Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING, ACTION, SUIT, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE, THE MERGER AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 11.3.
SECTION 12: GENERAL PROVISIONS
12.1 Entire Agreement.
This Limited Guarantee, together with the Merger Agreement and any other documents, agreements, or instruments delivered in connection herewith or therewith, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, and warranties, whether oral or written, between the parties hereto with respect to such subject matter. There are no warranties, representations, or other agreements between the parties hereto in connection with the subject matter hereof except as specifically set forth herein or in the Merger Agreement.
12.2 Severability. If any term, provision, covenant, or restriction of this Limited Guarantee is held by a court of competent jurisdiction or other governmental authority to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Limited Guarantee shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, so long as the economic and legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such a determination, the parties hereto shall negotiate in good faith to modify this Limited Guarantee so as to effect the original intent of the parties hereto as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible.
12.3 Assignment. Neither Guarantor nor the Company may assign, delegate, or otherwise transfer any of its rights or obligations under this Limited Guarantee without the prior written consent of the other party hereto, and any attempted assignment, delegation, or transfer in violation of this Section 12.3 shall be null and void and of no force or effect; provided, however, that the Company may, without the consent of Guarantor, assign all or any portion of its rights (but not its obligations) under this Limited Guarantee to any successor entity resulting from a merger, consolidation, or similar business combination involving the Company, or to any entity to which the Company transfers all or substantially all of its assets, so long as such successor entity or transferee agrees in writing to be bound by and to assume all of the rights and obligations of the Company under this Limited Guarantee. Subject to the foregoing, this Limited Guarantee shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
12.4 Third-Party Beneficiaries.
This Limited Guarantee is solely for the benefit of the Company and its successors and permitted assigns, and nothing in this Limited Guarantee, express or implied, is intended to or shall confer upon any other person (including, without limitation, any stockholder of the Company, Parent, Merger Sub, or any of their respective affiliates) any right, benefit, or remedy of any nature whatsoever under or by reason of this Limited Guarantee; provided, however, that the persons described in Section 8 of this Limited Guarantee shall be express third-party beneficiaries of the provisions of Section 8.
12.5 Counterparts. This Limited Guarantee may be executed in one or more counterparts (including by facsimile or by electronic transmission in portable document format (.pdf)), each of which when so executed shall be deemed to be an original, and all of which counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Limited Guarantee by facsimile transmission or by electronic transmission in portable document format (.pdf) shall be as effective as delivery of a manually executed original counterpart of this Limited Guarantee.
12.6 Specific Performance.
The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Limited Guarantee were not performed by Guarantor in accordance with their specific terms or were otherwise breached by Guarantor. Accordingly, the Company shall be entitled to an injunction or injunctions, specific performance, or other equitable relief to prevent breaches or threatened breaches of this Limited Guarantee and to enforce specifically the terms and provisions of this Limited Guarantee, subject in all cases to the limitations and Cap set forth herein, without proof of actual damages (which shall be presumed) and without the necessity of posting any bond or other undertaking. The right of the Company to specific performance shall be in addition to, and not in limitation of, any other rights and remedies that the Company may have at law or in equity for a breach or threatened breach of this Limited Guarantee.
[Remainder of this page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Limited Guarantee as of the date first written above.
GUARANTOR:
ARDENT CAPITAL GP III LLC
By: ________
Name: Julian Rask
Title: Co-Founder & Managing Partner
By: ________
Name: Nadia Ferrante
Title: Co-Founder & Managing Partner
Date: April 25, 2022
ACCEPTED AND ACKNOWLEDGED by the undersigned as of the date first written above.
CORAL REEF HOSPITALITY GROUP, INC.
CORAL REEF HOSPITALITY GROUP, INC.
By: ________
Name: Marcus Ellender
Title: Chief Executive Officer
Date: April 25, 2022
[Signature Page to Limited Guarantee]