Exhibit (d)(vi)
Platinum Equity Capital Partners IV, L.P.
Platinum Equity Capital Partners V, L.P.
360 North Crescent Drive, South Building
Beverly Hills, California 90210
March 8, 2023
Olympus Water Holdings IV, L.P.
c/o Platinum Equity Advisors, LLC
360 North Crescent Drive, South Building
Beverly Hills, California
90210
Ladies and Gentlemen:
Reference is made to the
Agreement and Plan of Merger, dated as of the date hereof, by and among OLYMPUS WATER HOLDINGS IV, L.P., a Cayman Islands exempted limited
partnership, acting by its general partner, General Partner (“Parent”), DIAMOND MERGER LIMITED, a Cayman Islands exempted
company and a wholly-owned Subsidiary of Parent (“Merger Sub”), and DIVERSEY HOLDINGS, LTD., a Cayman Islands exempted
company (the “Company”) (as the same may be amended from time to time, the “Merger Agreement”),
pursuant to which, upon the terms and subject to the conditions set forth therein, Merger Sub will merge with and into the Company, with
the Company as the surviving entity and a wholly-owned Subsidiary of Parent. Capitalized terms used but not defined herein have the meanings
ascribed to them in the Merger Agreement.
1. Commitment. Each
of Platinum Equity Capital Partners IV, L.P., a Delaware limited partnership, and Platinum Equity Capital Partners V, L.P., a Delaware
limited partnership (each a “Sponsor” and, together, the “Sponsors”), severally and not jointly,
hereby commits to contribute to Parent or its Affiliates, directly or indirectly through one or more intermediaries, at the Closing and
on the terms and subject to the conditions contained herein and in the Merger Agreement, in cash in immediately available funds, their
Pro Rata Portion (as defined below) of an aggregate amount in U.S. dollars that is equal to $950,000,000 (the amount of such Sponsor’s
Pro Rata Portion being such Sponsor’s “Commitment”), in exchange, directly or indirectly, for equity securities
of Parent or its Affiliates, solely for the purpose of funding, and to the extent necessary to fund, together with the net proceeds of
the Debt Financing, all of the amounts required to be paid by Parent in connection with the consummation of the Closing pursuant to Sections
2.8(n) (Payment Procedures), 2.9(b) (Payment Fund) and 6.16 (Company Payoff Indebtedness) of the
Merger Agreement, together with related fees, costs and expenses required to be paid by Parent, Merger Sub or the Surviving Company in
connection with the transactions contemplated by the Merger Agreement (together, the “Closing Payments”). Furthermore
(a) in the event a Sponsor assigns a portion of its Commitment to one or more Permitted Assignees in accordance with Section 7
(No Assignment) hereof, the amount required to be funded by the Sponsor will be reduced on a dollar-for-dollar basis by the portion
of such Sponsor’s Commitment pursuant to this letter actually funded by such Permitted Assignee in cash to Parent at the Closing;
and (b) the Commitment may be reduced by Parent in an amount specified by Parent solely to the extent that, after giving effect to such
reduction, and by reason of Parent having obtained funds from other sources, Parent is able to fund all of the Closing Payments required
by it pursuant to, and consummate the transactions contemplated by, the Merger Agreement in accordance with the terms thereof. The term
“Pro Rata Portion” means (A) with respect to Platinum Equity Capital Partners IV, L.P., 31.58% and (B) with respect
to Platinum Equity Capital Partners V, L.P., 68.42%.
2. Representations and
Warranties. Each Sponsor represents and warrants as to itself, and not as to the other Sponsor, that (a) this letter has been duly
and validly executed and delivered by such Sponsor and upon execution and delivery of the Merger Agreement, this letter will constitute
a legal, valid and binding obligation of such Sponsor enforceable against such Sponsor 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); (b) such Sponsor is
duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite power
and authority to enter into this letter and to perform its obligations hereunder; (c) the execution, delivery and performance of this
letter has been duly and validly authorized by all necessary action and does not contravene, conflict with or result in any violation
of any provision of such Sponsor’s certificate of formation, limited partnership agreement or other organizational or governing
documents or any Law binding on such Person or its assets; (d) such Sponsor has sufficient cash or unfunded capital commitments to cause
its Commitment to be funded to Parent pursuant to and in accordance with this letter; and (e) all funds necessary for such Sponsor to
perform all of its obligations under this letter shall be available (in the form of cash or unfunded capital commitments) to it for so
long as this letter shall remain in effect, and no additional internal approval is needed to fulfill such Sponsor’s obligations
hereunder.
3. Conditions.
The obligation of each Sponsor to fund its Commitment (a) is subject to (i) the satisfaction or waiver by Parent and Merger Sub of
all conditions precedent set forth in Sections 7.1 (Conditions to Each Party’s Obligations to Effect the Merger)
and 7.2 (Conditions to the Obligations of Parent and Merger Sub) of the Merger Agreement to Parent’s and Merger
Sub’s obligations to consummate the Closing (other than those conditions that are by their terms to be satisfied at the
Closing, but subject to such conditions being capable of being satisfied); and (ii) the prior or substantially simultaneous closing
and funding of the Debt Financing, or the Debt Financing Sources having confirmed in writing that the Debt Financing (including for
the avoidance of doubt, any Alternative Financing) is capable of being funded in full at the Closing if the Commitment is funded at
the Closing; and (b) is subject to, and will occur contemporaneous with, the Closing.
4.
Term; Termination. Each Sponsor’s Commitment shall become effective on the date and time at which the Merger Agreement has
been duly executed by all parties thereto. Each Sponsor’s obligation to fund its Commitment will terminate automatically and immediately
upon the earliest to occur of (a) the funding of such Commitment and consummation of the Closing in accordance with the terms of the
Merger Agreement, (b) the termination of the Merger Agreement in accordance with its terms, (c) the Company or any of its controlled
Affiliates or agents duly authorized to act on the Company’s or its controlled Affiliates’ behalf or Bain or any of its controlled
Affiliates or agents duly authorized to act on Bain’s or its controlled Affiliates’ behalf asserting, filing or otherwise
commencing, directly or indirectly, any lawsuit or other legal proceeding asserting a claim under, or action against, any Sponsor Related
Party (as defined below) in connection with this letter, the Guarantee, the Merger Agreement, the Debt Commitment Letters or any transaction
contemplated hereby or thereby or otherwise relating hereto or thereto, other than any Permitted Claim (as defined in, and to the extent
permitted under, Section 2 (Changes in Obligations; Certain Waivers) of the Guarantee), in each case, subject to all of
the terms, conditions and limitations herein and therein, or (d) the occurrence of any event which, by the terms of the Guarantee, is
an event which terminates the Obligations, as defined in the Guarantee. Upon termination of this letter, the Sponsors shall have no further
obligations or liabilities hereunder.
5.
No Third Party Beneficiaries. This letter shall be binding solely on, and inure solely to the benefit of, the parties hereto
and their respective successors and permitted assigns, and nothing set forth in this letter shall be construed to confer upon or give
to any Person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under
or by reason of, or any rights to enforce or cause Parent or Merger Sub to enforce, the Commitment or any provisions of this letter; provided
that, subject to the terms and conditions of the Merger Agreement, including Section 9.8 (Remedies) thereof, to the extent
the Company is entitled to specific performance of the obligations of Parent under the Merger Agreement in the limited circumstances set
forth in Section 9.8 (Remedies) thereof, the Company shall be a third party beneficiary of the enforcement rights granted
to Parent under this letter solely for the purpose of seeking specific performance of Parent’s right to cause the Commitment to
be funded hereunder in accordance with Section 1 (Commitment) hereof (solely to the extent that Parent can enforce the Commitment
pursuant to the terms hereof) and for no other purpose (including any claim for monetary damages); provided, further that the Sponsor
Related Parties shall be express third party beneficiaries of the provisions set forth herein that are for the benefit of the Sponsor
Related Parties, each of which shall survive an expiration or termination of this letter. For the avoidance of doubt, the Company’s
remedies in this letter shall be solely with respect to specific performance and the Company shall not have any right to seek or obtain
monetary damages pursuant to this letter.
6. Limited Recourse; Enforcement.
(a) Notwithstanding anything
that may be expressed or implied in this letter, or any document or instrument delivered in connection herewith, Parent, by its acceptance
of the benefits of the Commitment, agrees and acknowledges that no Person other than the Sponsors (and any Permitted Assignees) shall
have any obligations hereunder and that, notwithstanding that any Sponsor or its Permitted Assignee may be a partnership or limited liability
company, no recourse hereunder or under any documents or instruments delivered in connection herewith or in respect of any oral representations
made or alleged to have been made in connection herewith or therewith shall be had against any former, current or future director, officer,
employee, direct or indirect equityholder, controlling person, general or limited partner, manager, member, stockholder, Affiliate, successor
or assign of any Sponsor or any former, current or future director, officer, employee, direct or indirect equityholder, controlling person,
general or limited partner, manager, member, stockholder, Affiliate, successor or assign of any of the foregoing (in each case other
than the Sponsors, Parent, Merger Sub or any assignee permitted in accordance with the Merger Agreement, each, a “Sponsor Related
Party” and collectively, the “Sponsor Related Parties”), whether by or through attempted piercing of the
corporate (or limited liability company or limited partnership) veil, by or through a claim by or on behalf of a Sponsor against any
Sponsor Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation
or Law, or otherwise. It is expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or
otherwise be incurred by any Sponsor Related Party for any obligations of a Sponsor or any of its respective successors or permitted
assigns under this letter or any documents or instruments delivered in connection herewith or in respect of any oral representations
made or alleged to have been made in connection herewith or therewith or for any claim (whether at law or equity or in tort, contract
or otherwise) based on, in respect of, or by reason of such obligations or their creation.
(b) Subject to the Company’s
rights pursuant to Section 5 (No Third Party Beneficiaries) hereof, this letter may only be enforced by Parent against a
Sponsor at the direction of such Sponsor in its sole discretion, and Parent shall have no right to enforce this letter against a Sponsor
unless directed to do so by such Sponsor in its sole discretion. Parent’s creditors shall have no right to enforce this letter or
to cause Parent to enforce this letter.
(c) Concurrently with the execution
and delivery of this letter and the Merger Agreement, the Sponsors are executing and delivering in favor of the Company a Guarantee related
to certain of Parent’s and Merger Sub’s obligations under the Merger Agreement. The Company’s remedies against the
Sponsors under the Guarantee shall, and are intended to, be the sole and exclusive direct or indirect remedies available to the Company
and the Company Related Parties against the Sponsors and Sponsor Related Parties in respect of any liabilities or obligations (including
consequential, indirect or punitive damages, and whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection
with, the Merger Agreement or the failure of the Closing to be consummated or otherwise in connection with the transactions contemplated
hereby and thereby or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including
in the event Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not Parent or Merger Sub’s breach
is caused by the breach of a Sponsor of its obligations under this letter, except for (i) the Company’s right to seek specific
performance of the obligations of Parent in the limited circumstances under Section 9.8 (Remedies) of the Merger Agreement and
(ii) the rights of the Company set forth in (A) Section 5 (No Third Party Beneficiaries), (B) Section 7 (No Assignment),
(C) the second sentence of Section 12 (Confidentiality) and (D) Section 13 (Amendments and Waivers) hereof
(which rights, in each case of the foregoing clauses (A), (B), (C) and (D), shall be with respect to specific performance only and for
no other purpose, including any claim for monetary damages). Each Sponsor hereby agrees not to oppose the granting of an injunction,
specific performance or other equitable relief on the basis that Parent or the Company, as applicable, has an adequate remedy at law.
7. No Assignment.
This letter and the Commitments of the Sponsors described herein shall not be assignable by Parent without the prior written consent
of the Sponsors and the Company (with the prior approval of the Special Committee), and the granting of such consent in a given instance
shall be solely in the discretion of the Sponsors and the Company and, if granted, shall not constitute a waiver of this requirement
as to any subsequent assignment. No assignment (in whole or in part) by a Sponsor of its rights or obligations hereunder shall be permitted
without the prior written consent of Parent and the Company (with the prior approval of the Special Committee). Notwithstanding the foregoing,
each Sponsor may, without consent, assign all or a portion of its Commitment hereunder to one or more of its Affiliates, including the
other Sponsor (any such Affiliate, a “Permitted Assignee”); provided, that no such assignment or transfer to
a Permitted Assignee shall (i) relieve a Sponsor of any part of its obligations hereunder, except on a dollar-for-dollar basis in respect
of any portion of its Commitment actually funded by such Permitted Assignee pursuant to the assigning Sponsor’s Commitment under
this letter or (ii) prevent, materially impair or delay the Closing. Any purported assignment or transfer in violation of this Section
7 (No Assignment) shall be null and void.
8.
Entire Agreement. This letter, together with the Merger Agreement and the Guarantee, constitute the entire agreement and supersede
all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter
hereof or thereof.
9.
Severability. In the event that any provision of this letter, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, or incapable of being enforced under any applicable Law, the remainder of
this letter will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted
so as reasonably to effect the intent of the parties. The parties further agree to replace such void or unenforceable provision of this
letter with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
10. Governing
Law; Jurisdiction and Forum. This letter and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise)
arising out of or relating to this letter or the actions of Parent and Sponsors in the negotiation, administration, performance and enforcement
thereof, shall be governed by, and construed in accordance with the Laws of the State of Delaware, including its statute of limitations,
without giving effect to any choice or conflict of Laws (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. Each of the parties (a) irrevocably consents to the
service of the summons and complaint and any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts)
in any Legal Proceeding relating to this letter, for and on behalf of itself or any of its properties or assets, in any manner as may
be permitted by applicable Law; (b) irrevocably and unconditionally consents and submits itself and its properties and assets in any
Legal Proceeding to the exclusive general jurisdiction of the Court of Chancery of the State of Delaware and any state appellate court
therefrom within 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 or federal court within the State of Delaware) (the “Chosen Courts”) in the event that
any dispute or controversy arises out of this letter or the transactions contemplated hereby; (c) agrees that it shall not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (d) agrees that any Legal Proceeding
arising in connection with this letter or the transactions contemplated hereby or thereby shall be brought, tried and determined only
in the Chosen Courts; (e) waives any objection that it may now or hereafter have to the venue of any such Legal Proceeding in the Chosen
Courts or that such Legal Proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (f)
agrees that it shall not bring any Legal Proceeding relating to this letter or the transactions contemplated hereby in any court other
than the Chosen Courts. Each of Parent and the Sponsors agrees that a final judgment in any Legal Proceeding in the Chosen Courts will
be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.
.
11. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS LETTER IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE) DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LETTER. EACH PARTY ACKNOWLEDGES AND AGREES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (iii) IT MAKES THIS WAIVER VOLUNTARILY;
AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
11 (WAIVER OF JURY TRIAL).
12.
Confidentiality. This letter shall be treated as confidential and is being provided to Parent and the Company solely in connection
with the transactions contemplated by the Merger Agreement. This letter may not be used, circulated, quoted or otherwise referred to in
any document, except with the written consent of the Sponsors. The foregoing notwithstanding, this letter shall be provided to the Company,
and the Company and the undersigned may disclose the existence of this letter to (a) its Affiliates, advisors and representatives on a
need-to-know basis, but only if such Person agrees to keep such information confidential, (b) to the extent required by Law, the applicable
rules of any national securities exchange or in connection with any securities regulatory agency filings related to the transactions contemplated
by the Merger Agreement, including a customary description of this letter in the Proxy Statement, and in any court proceedings in connection
with any litigation relating to the Merger or the Merger Agreement, as permitted by or provided in the Merger Agreement, (c) in conjunction
with the enforcement of the terms of this letter against the Sponsors and (d) to its members and their respective representatives on a
need-to-know basis, but only if such Person agrees to keep such information confidential.
13. Amendments and Waivers. No amendment or waiver of any provision of this letter will be valid and binding unless it is in writing
and signed, by the Company (with the prior approval of the Special Committee), the Sponsors and Parent, provided that this letter
may be amended by the Sponsors without written consent of the Company to reflect any permitted assignment pursuant to Section 7
hereunder (No Assignment). No waiver by any party hereto shall operate or be construed as a waiver in respect of any failure, breach
or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before
or after that waiver.
14.
Counterparts; Electronic Execution. This letter may be executed in one or more counterparts, all of which will be considered one
and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the same counterpart. Any such counterpart, to the extent delivered
by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”),
will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. No party may raise the use of an Electronic Delivery to
deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an
Electronic Delivery, as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent
such defense relates to lack of authenticity.
15. No Presumption Against
Drafting Party. Each party acknowledges that it and its counsel have been given an equal opportunity to negotiate the terms and conditions
of this letter and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party or any similar
rule operating against the drafter of an agreement are not applicable to the construction or interpretation of this letter.
Remainder of this page intentionally left blank.
If the foregoing is acceptable
to Parent, please sign and return a copy of this letter, whereupon this letter will constitute the commitment of each Sponsor to provide
the aforementioned equity financing to Parent on the terms and conditions set forth herein.
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Very truly yours, |
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SPONSORS: |
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PLATINUM EQUITY CAPITAL PARTNERS
IV, L.P. |
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a Delaware limited partnership |
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By: |
Platinum Equity Partners IV, L.P., |
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its general partner |
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By: |
Platinum Equity Partners IV, LLC, |
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its general partner |
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By: |
/s/ Mary Ann
Sigler |
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Name: Mary Ann Sigler |
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Title: Secretary, Vice President and Treasurer |
Signature Page to Equity Commitment Letter
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PLATINUM EQUITY CAPITAL PARTNERS
V, L.P. |
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a Delaware limited partnership |
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By: |
Platinum Equity Partners V, L.P., |
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its general partner |
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By: |
Platinum Equity Partners V, LLC |
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its general partner |
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By: |
/s/
Mary Ann Sigler |
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Name: Mary Ann Sigler |
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Title: Secretary, Vice President and Treasurer |
Agreed to and accepted as of the date first written above:
| PARENT: |
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OLYMPUS WATER HOLDINGS IV, L.P.
By: Olympus Water Holdings Limited,
its General Partner |
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| By: |
/s/ Mary Ann Sigler |
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| Name: Mary Ann Sigler |
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| Title: Director |
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Signature Page to Equity Commitment Letter
Exhibit (d)(vii)
Limited Guarantee
This Limited Guarantee, dated
as of March 8, 2023 (this “Guarantee”), is made by Platinum Equity Capital Partners IV, L.P., a Delaware limited partnership
and Platinum Equity Capital Partners V, L.P., a Delaware limited partnership (each, a “Guarantor” and, together, the
“Guarantors”) in favor of Diversey Holdings, Ltd., a Cayman Islands exempted company (the “Guaranteed Party”).
Capitalized terms used but not defined herein have the meanings ascribed to them in the Merger Agreement (as defined below).
(a) In
connection with the execution and delivery, as of the date hereof, of the Agreement and Plan of Merger, by and among OLYMPUS WATER
HOLDINGS IV, L.P., a Cayman Islands exempted limited company, acting by its general partner, General Partner
(“Parent”), DIAMOND MERGER LIMITED, a Cayman Islands exempted company and a wholly-owned Subsidiary of Parent
(“Merger Sub”), and the Guaranteed Party (as the same may be amended from time to time, the “Merger
Agreement”), each Guarantor hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a
surety, to the Guaranteed Party, the due and punctual observance, performance, and discharge of the payment obligations of Parent
and Merger Sub with respect to such Guarantor’s Pro Rata Portion (as defined below) of (i) the Parent Termination Fee, (ii)
the Reimbursement Obligations in an amount not to exceed $7,500,000 in the aggregate, and (iii) any interest on the Parent
Termination Fee and any out-of-pocket costs and expenses (including attorneys’ fees), in each case, required to be paid by
Parent to the Company pursuant to Section 8.3(e) (Payments; Default) of the Merger Agreement (clauses (i) through
(iii) collectively, the “Obligations”). The guaranties and obligations of the Guarantors shall be several and not
joint, which shall mean that a Guarantor shall be liable to the Guaranteed Party only to the extent of such Guarantor’s Pro
Rata Portion of the Obligations. The Guaranteed Party hereby agrees that in no event shall a Guarantor be required to pay any amount
to the Guaranteed Party or any other Person under, in respect of, or in connection with this Guarantee, the Merger Agreement or the
Equity Commitment Letter other than as expressly set forth herein or therein.
(b)
The maximum aggregate amount of liability of the Guarantors shall not exceed the amount of the Obligations, which shall
be reduced on a dollar-for-dollar basis by any payments of cash actually made to the Guaranteed Party by such Guarantor or its permitted
assignee pursuant to Section 5 in respect of the Obligations (such maximum amount as it may be reduced from time to time as described
in this sentence, the “Maximum Amount”). This Guarantee may not be enforced against a Guarantor with respect to any
amounts in excess of such Guarantor’s Pro Rata Portion of the Maximum Amount. The term “Pro Rata Portion” means
(A) with respect to Platinum Equity Capital Partners IV, L.P., 31.58% and (B) with respect to Platinum Equity Capital Partners V, L.P.,
68.42%, provided, that each Guarantor’s Pro Rata Portion shall be automatically adjusted to reflect any valid assignment
by a Guarantor of any portion of such Guarantor’s commitment under the Equity Commitment Letter to the other Guarantor pursuant
to, and in accordance with, Section 7 (No Assignment) thereof.
(c)
Promptly upon receipt of any written notice from the Guaranteed Party that Parent and Merger Sub have failed to pay the Obligations
due in accordance with the terms of the Merger Agreement, each Guarantor shall promptly (and in any event within such time as required
under the Merger Agreement after receipt of the Guaranteed Party’s written notice) pay in full its Pro Rata Portion of the amount
of the required payment.
(d)
This
Guarantee is an unconditional guaranty of payment and not of collection.
(e)
All payments hereunder shall be made in lawful money of the United States, in immediately available funds.
| 2. | Changes in Obligations; Certain Waivers. |
(a)
Each Guarantor agrees that the Guaranteed Party (with the prior written notice of the Special Committee) may at any time
and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of the Obligations, and may also
enter into any agreement with Parent, Merger Sub or with any other Person interested in the transactions contemplated by the Merger Agreement,
for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms
of the Merger Agreement or of any agreement between the Guaranteed Party and Parent or any such other Person without in any way impairing
or affecting such Guarantor’s Obligations under this Guarantee. Each Guarantor agrees that the Obligations hereunder shall to the
fullest extent permitted by applicable Law, be absolute, unconditional and irrevocable irrespective of, and shall not be released or discharged,
in whole or in part, or otherwise affected by:
(i)
the failure or delay of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger
Sub, any Guarantor or any other Person;
(ii)
the addition, substitution or release of any Person now or hereafter liable with respect to the Obligations to or from this Guarantee,
the Merger Agreement, the Equity Commitment Letter or any related agreement or document or otherwise interested in the transactions contemplated
by the Merger Agreement;
(iii)
any change in the corporate existence, structure or ownership of Parent, Merger Sub, the Guarantors or any other Person;
(iv)
any voluntary or involuntary liquidation, dissolution, marshalling of assets and liabilities, receivership, insolvency, bankruptcy,
reorganization, moratorium, assignment for the benefit of creditors or other similar proceeding affecting Parent, Merger Sub, the Guarantors
or any other Person or any of their respective assets;
(v)
the existence of any claim, set-off or other right which a Guarantor may have at any time against Parent or Merger Sub or any of
their respective Affiliates, whether in connection with the Obligations or otherwise;
(vi)
any change in the time, place or manner of payment 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 the Obligations made accordance with the terms thereof;
(vii)
the adequacy or potential adequacy of any other means the Guaranteed Party may have of obtaining payment of the Obligations;
(viii)
without limiting the rights of each Guarantor set forth in Section 2(d), the genuineness, validity, illegality or enforceability
of the Merger Agreement, the Commitment Letters, the definitive documents for the Debt Financing or any other agreement or instrument
related thereto or referred to herein or in the Merger Agreement; or
(ix)
any other act or omission that may or might in any manner or to any extent vary or reduce the obligation of the Guarantor
or otherwise operate as a discharge of a Guarantor as a matter of applicable Law or equity.
(b)
To the fullest extent permitted by applicable Laws, each Guarantor hereby expressly waives any and all rights or defenses arising
by reason of any applicable Laws that would otherwise require any election of remedies by the Guaranteed Party. Each Guarantor waives
promptness, diligence, notice of the acceptance of this Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance,
default, dishonor and protest, notice of the incurrence of any of the Obligations and all other notices of any kind (other than notices
expressly required to be provided to Parent in accordance with 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 the assets
of Parent or any other Person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally
(other than defenses to the payment of the Obligations that are available to Parent under the Merger Agreement or a breach by the Guaranteed
Party of this Guarantee). Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions
contemplated by the Merger Agreement and that the waivers set forth in this Guarantee are knowingly made in contemplation of such benefits.
All obligations to which this Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created
in reliance hereon. The Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Merger
Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not
affect a Guarantor’s obligations hereunder.
(c) The
Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to
institute, any proceeding or bring any other claim arising under, or in connection with, the Equity Commitment Letter or the Merger
Agreement or the transactions contemplated thereby, against any Guarantor or any Guarantor Affiliate (as defined below), except for
(i) claims against a Guarantor (or its Permitted Assignees (as defined in the Equity Commitment Letter)) or Parent under the Equity
Commitment Letter, solely to the extent expressly provided therein (subject to the terms set forth therein and in the Merger
Agreement), (ii) claims against a Guarantor (or its permitted assignees) under this Guarantee (subject to the terms herein), (iii)
any claim by the Guaranteed Party against Parent or Merger Sub, to the extent permitted, under the Merger Agreement and (iv) claims
by the Guaranteed Party against the parties to the Confidentiality Agreement, subject to the terms of the Confidentiality Agreement
(clauses (i) to (iv), collectively, the “Permitted Claims”), and each Guarantor hereby covenants and agrees that
it shall not institute, and shall cause its controlled Affiliates not to institute, any proceeding asserting that this Guarantee is
illegal, invalid or unenforceable in accordance with its terms.
(d)
Notwithstanding any other provision of this Guarantee, the Guaranteed Party hereby agrees that (i) the Guarantors may assert,
as a defense to, or release or discharge of, any payment or performance by the Guarantors under this Guarantee, any claim, set-off, deduction,
defense or release that Parent could assert against the Company under the terms of, or with respect to, the Merger Agreement. (including,
without limitation, any such claim or defense that any Obligations are not then required to be due and payable by Parent pursuant to the
terms and conditions of Article VIII (Termination) of the Merger Agreement and subject to the limitations on liability set forth
therein and in Section 9.8(b) (Specific Performance) of the Merger Agreement) and (ii) to the extent Parent is relieved of all
or any portion of the Obligations under the Merger Agreement, the Guarantors shall likewise automatically and without any further action
on the part of any person be relieved of all or such portion, as applicable, of its obligations under this Guarantee (excluding, in the
case of clauses (i) and (ii), any defense arising in connection with the insolvency, bankruptcy, reorganization, liquidation or other
similar proceeding (or any consequence or effects thereof) with respect to Parent or Merger Sub or their respective assets).
3.
No Waiver; Cumulative Rights. No failure on the part of the Guaranteed Party 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 Guaranteed Party
of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder. Each and every
right, remedy and power hereby granted to the Guaranteed Party or allowed it by applicable Laws or other agreement shall be cumulative
and not exclusive of any other, and may be exercised by the Guaranteed Party at any time and from time to time.
| 4. | Representations and Warranties. |
(a)
Each Guarantor hereby represents and warrants to the Guaranteed Party as to itself, and not as to the other Guarantor, that:
(i)
such Guarantor is a duly organized and validly existing limited partnership in good standing under the laws of the State of Delaware;
(ii)
the execution, delivery and performance of this Guarantee have been duly authorized by all necessary action and do not contravene,
conflict with or result in any violation of any provision of such Guarantor’s organizational documents or any applicable Law or
contractual restriction binding on such Guarantor or its assets,
(iii)
it has all power and authority necessary to execute, deliver and perform this Guarantee, no internal corporate (or similar) approval
of such Guarantor is required and this Guarantee has been duly executed and delivered by such Guarantor;
(iv)
this Guarantee constitutes a legal, valid and binding obligation of such Guarantor enforceable against the Guarantor 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);
(v)
all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for
the due execution, delivery and performance of this Guarantee by such Guarantor 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 is required in connection
with the execution, delivery or performance of this Guarantee by such Guarantor; and
(vi)
such Guarantor has the financial capacity to pay and perform its obligations under this Guarantee, and all funds necessary for
the Guarantor to fulfill its Pro Rata Portion of the Obligations shall be available to such Guarantor for so long as this Guarantee shall
remain in effect in accordance with Section 7 (Continuing Guarantee) hereof.
5. Assignment.
Neither the Guarantors, on the one hand, nor the Guaranteed Party, on the other hand, may assign, transfer or delegate their
respective rights, interests or obligations hereunder to any other Person (except by operation of law) without the prior written
consent of all the other parties hereto. Notwithstanding the foregoing, each Guarantor may assign its rights, interests or its
Obligations hereunder to its Affiliates; provided, however, that no such assignment shall relieve such Guarantor of
its Obligations hereunder except that such Guarantor’s Obligations hereunder shall be reduced on a dollar-for-dollar basis by
any amounts actually paid in cash to the Guaranteed Party in respect of its Obligations hereunder by such permitted assignee. This
Guarantee shall not be assigned by the Guaranteed Party (whether by operation of Law or otherwise), without the prior written
consent of the Guarantors, or by any Guarantor (whether by operation of Law or otherwise), without the prior written consent of the
Guaranteed Party (which consent shall have been approved in writing by the Special Committee); provided that any adjustment
between Guarantors’ respective Pro Rata Portions pursuant to Section 1(b) shall not require the consent of the
Guaranteed Party, provided that such assignment will not prevent, materially impair or delay the Closing. Any attempted
assignment in violation of this section shall be null and void.
6.
Notices. All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered
and received hereunder (i) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide
overnight courier service; (ii) immediately upon delivery by hand or (iii) by e-mail transmission, upon written or electronic confirmation
of receipt, in each case to the intended recipient as set forth below:
If to a Guarantor, to:
c/o Platinum Equity Advisors, LLC
360 North Crescent Drive, South Building
Beverly Hills,
California 90210
Attention: John Holland, General Counsel
Facsimile: (310) 712-1863
Email: JHolland@platinumequity.com
with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
2029 Century Park East, Suite 4000
Los Angeles, California 90067-3026
Attention: Ari B. Lanin
Email: ALanin@gibsondunn.com
and
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Attention: Evan M. D’Amico
Email: EDAmico@gibsondunn.com
All notices to the Guaranteed
Party shall be delivered in a written notice delivered to the Guaranteed Party in accordance with the Merger Agreement.
7.
Continuing
Guarantee. Unless terminated pursuant to this Section 7 (Continuing Guarantee), this Guarantee is a continuing one
and may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantors, their successors
and permitted assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its respective successors and
permitted transferees and assigns, until the Obligations have been paid, observed, performed or satisfied in full, at which time this
Guarantee shall immediately and automatically terminate and the Guarantors shall have no further obligations under this Guarantee. Notwithstanding
the foregoing, this Guarantee shall terminate automatically and the Guarantors shall have no further obligations under this Guarantee
immediately as of the earliest to occur of (i) the consummation of the Closing and the payment of Closing Payments (as defined in the
Equity Commitment Letter) in connection therewith, (ii) payment in full of the Obligations pursuant to this Guarantee, (iii) valid termination
of the Merger Agreement in accordance with its terms in any circumstances other than pursuant to which Parent would be obligated to make
a payment of any portion of the Obligations and (iv) the date that is 90 days after the valid termination of the Merger Agreement in
accordance with its terms in any circumstances pursuant to which Parent would be obligated to make a payment in respect of any portion
of the Obligations (any such termination, a “Qualifying Termination”)), unless prior to the end of the 90th day
after a Qualifying Termination, the Guaranteed Party shall have commenced a suit, action or other proceeding against Parent alleging
payment of any Obligations due and owing or against a Guarantor that amounts are due and owing from the Guarantors pursuant to Section
1 (Limited Guarantee) hereof (a “Qualifying Suit”); provided that if a Qualifying Termination has
occurred and a Qualifying Suit is filed prior to the end of the 90th day after a Qualifying Termination, the Guarantors shall
not have any further liability or obligation under this Guarantee from and after the earliest of (w) the consummation of the Closing
in accordance with the terms of the Merger Agreement, including payment of the Closing Payments (as defined in the Equity Commitment
Letter) in accordance with the Merger Agreement, (x) a final, non-appealable resolution of such Qualifying Suit determining that the
Guarantors do not owe any amount pursuant to this Guarantee, (y) a written agreement among the Guarantors and the Guaranteed Party expressly
terminating this Guarantee, and (z) satisfaction in full of the Guarantors’ Obligations by the Guarantors or Parent. Notwithstanding
the foregoing, in the event that the Guaranteed Party or its Subsidiaries, or any of their respective directors or officers acting on
their behalf or controlled Affiliates or Bain or its Subsidiaries, or any of their respective directors or officers acting on their behalf
or controlled Affiliates (A) file or otherwise commence (or encourage, facilitate or support any other person to file or commence) any
lawsuit or other legal proceeding asserting a claim that the provisions of this Guarantee limiting a Guarantor’s liability to its
Pro Rata Portion of the Obligations or its Pro Rata Portion of the Maximum Amount, or any provisions of this Guarantee are illegal, invalid
or unenforceable in whole or in part, or assert any theory of liability against any Guarantor or any Guarantor Affiliate with respect
to the transactions contemplated by the Merger Agreement other than any Permitted Claim or (B) assert, file or otherwise commence, directly
or indirectly, any lawsuit or other legal proceeding asserting a claim under, or action against, any Guarantor Affiliate in connection
with this Guarantee, the Equity Commitment Letter, the Merger Agreement, the Debt Commitment Letters or any transaction contemplated
hereby or thereby or otherwise relating hereto or thereto, in each case other than any Permitted Claim, then (W) the obligations of the
Guarantors under this Guarantee shall terminate ab initio and be null and void, (X) if a Guarantor has previously made any payments
under this Guarantee, such Guarantor shall be entitled to recover such payments, (Y) the Guarantors shall be entitled to recover from
the Guaranteed Party the costs and expenses incurred by the Guarantors or any Guarantor Affiliate in connection with the defense of any
such claims or the enforcement of their respective rights under this Guarantee, the Equity Commitment Letter, the Merger Agreement, the
Debt Commitment Letters or any transaction contemplated hereby or thereby or otherwise relating hereto or thereto and (Z) neither the
Guarantors nor any of its Affiliates shall have any liability to the Guaranteed Party or any of its Affiliates with respect to the transactions
contemplated by the Merger Agreement, under this Guarantee or otherwise.
8. No
Recourse. The Guaranteed Party acknowledges the separate corporate existence of Parent and that, as of the date hereof,
Parent’s sole assets (if any) are a de minimis amount of cash and the rights of Parent pursuant to the Equity
Commitment Letter, the Debt Commitment Letter and the Merger Agreement, and that no additional funds are expected to be contributed
to Parent unless and until the Closing occurs. Notwithstanding anything that may be expressed or implied in this Guarantee or any
document or instrument delivered contemporaneously herewith, by its acceptance of the benefits of this Guarantee, but without
limiting any Permitted Claims, the Guaranteed Party acknowledges and agrees that it will not seek, has no rights of recovery
against, and no personal liability shall attach to, any former, current or future director, officer, employee, direct or indirect
equityholder, controlling person, general or limited partner, manager, member, stockholder, Affiliate (other than Parent and Merger
Sub), agent, successor or assign (other than any successor or assignee under Section 5 hereof) of any Guarantor or any
former, current or future director, officer, employee, direct or indirect equityholder, controlling person, general or limited
partner, manager, member, stockholder, Affiliate, agent, successor or assign (other than any successor or assignee under Section
5 hereof) of any of the foregoing (not including Parent or Merger Sub, each a “Guarantor Affiliate” and
collectively, the “Guarantor Affiliates”; it being understood that the term Guarantor Affiliate shall not include
the Guarantors, Parent or Merger Sub or any Person to which (x) Parent or Merger Sub have assigned their respective rights or
obligations under the Merger Agreement in accordance with the Merger Agreement or (y) any Guarantor has validly assigned all or any
portion of its Commitment (as defined in the Equity Commitment Letter) or its Obligations), through Parent, any Guarantor or
otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Parent against
any Guarantor Affiliate, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any applicable
Laws, or otherwise, except for any Permitted Claims. Notwithstanding anything to the contrary herein, with the exception of the
rights set forth in clauses (i), (ii), (iii) and (iv) immediately above, recourse against the Guarantors under this Guarantee shall
be the sole and exclusive remedy of the Guaranteed Party and its controlled Affiliates and equityholders against the Guarantors and
Parent in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement, this Guarantee or
the transactions contemplated thereby or hereby. Nothing set forth in this Guarantee shall affect or be construed to affect any
liability of Parent to the Guaranteed Party or shall confer or give or shall be construed to confer or give to any Person other than
the Guaranteed Party (including any Person acting in a representative capacity) any rights or remedies against any Person other than
the Guarantors as expressly set forth herein. This Section 8 (No Recourse) shall survive the termination of this
Guarantee.
9. Governing
Law; Jurisdiction and Forum. This Guarantee and all actions, proceedings or counterclaims (whether based on contract, tort or
otherwise) arising out of or relating to this Guarantee or the actions of the Guaranteed Party or Guarantors in the negotiation,
administration, performance and enforcement thereof, shall be governed by, and construed in accordance with the Laws of the State of
Delaware, including its statute of limitations, without giving effect to any choice or conflict of Laws (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. Each of the parties (a) irrevocably consents to the service of the summons and complaint and any other process (whether
inside or outside the territorial jurisdiction of the Chosen Courts) in any Legal Proceeding relating to this Guarantee, for and on
behalf of itself or any of its properties or assets, in accordance with Section 6 or in such other manner as may be permitted
by applicable Law, and nothing in this Section 9 will affect the right of any party to serve legal process in any other
manner permitted by applicable Law; (b) irrevocably and unconditionally consents and submits itself and its properties and assets in
any Legal Proceeding to the exclusive general jurisdiction of the Court of Chancery of the State of Delaware and any state appellate
court therefrom within 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 or federal court within the State of Delaware) (the “Chosen Courts”) in the
event that any dispute or controversy arises out of this Guarantee or the transactions contemplated hereby; (c) agrees that it shall
not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (d) agrees that
any Legal Proceeding arising in connection with this Guarantee or the transactions contemplated hereby shall be brought, tried and
determined only in the Chosen Courts; (e) waives any objection that it may now or hereafter have to the venue of any such Legal
Proceeding in the Chosen Courts or that such Legal Proceeding was brought in an inconvenient court and agrees not to plead or claim
the same; and (f) agrees that it shall not bring any Legal Proceeding relating to this Guarantee or the transactions contemplated
hereby in any court other than the Chosen Courts. Each of Guaranteed Party and the Guarantors agrees that a final judgment in any
Legal Proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by applicable Law.
10. Waiver
of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS GUARANTEE IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE)
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTEE. EACH PARTY ACKNOWLEDGES AND AGREES THAT (i) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER;
(iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS GUARANTEE BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10 (WAIVER OF JURY TRIAL).
11.
Severability. In the event that any provision of this Guarantee, or the application thereof, becomes or is declared by
a court of competent jurisdiction to be illegal, void or unenforceable, or incapable of being enforced under any applicable Law, the
remainder of this Guarantee will continue in full force and effect and the application of such provision to other Persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties. The parties further agree to replace such void or unenforceable
provision of this Guarantee with a valid and enforceable provision that will achieve, to the extent possible, the economic, business
and other purposes of such void or unenforceable provision. Notwithstanding anything to the contrary in this Guarantee, this Guarantee
may not be enforced without giving effect to the limitation of the amount payable hereunder with respect to the Obligations provided
in Section 1 (Limited Guarantee) hereof and to the provisions of Section 7 (Continuing Guarantee), Section
8 (No Recourse) and Section 2(d) (Changes in Obligations; Certain Waivers) hereof. No party hereto shall assert,
and each party shall cause its respective controlled affiliates not to assert, that this Guarantee or any part hereof is invalid, illegal
or unenforceable.
12.
Confidentiality. This Guarantee shall be treated as confidential and is being provided to the Guaranteed Party solely
in connection with the execution and delivery of the Merger Agreement. This Guarantee may not be used, circulated, quoted or otherwise
referred to in any document, except with the written consent of the Guarantors and the Guaranteed Party; provided, that no such
written consent shall be required (and the Guarantors, the Guaranteed Party and their respective Affiliates shall be free to release
such information) for disclosures to such person’s respective members, limited partners, securityholders, advisors and representatives
on a need-to-know basis, so long as such persons agree to keep such information confidential on terms substantially identical to the
terms contained in this Section 12 (Confidentiality); provided, further, that the Guarantors and the
Guaranteed Party may disclose this Guarantee to the extent required by Law, the applicable rules of any national securities exchange
or required or requested by the United States Securities and Exchange Commission.
13.
Counterparts; Electronic Execution. This Guarantee may be executed in one or more counterparts, all of which will
be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need not sign the same counterpart. Any such counterpart, to
the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic
Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have the
same binding legal effect as if it were the original signed version thereof delivered in person. No party may raise the use of an Electronic
Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the
use of an Electronic Delivery, as a defense to the formation of a contract, and each party forever waives any such defense, except to
the extent such defense relates to lack of authenticity.
14.
Entire Agreement. This Guarantee, the Equity Commitment Letter and the Merger Agreement constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
15.
Amendments and Waivers. No amendment, supplement, modification or waiver of any provision of this Guarantee will be valid
and binding unless it is in writing and signed by the Guarantors and the Guaranteed Party (which amendment, supplement, modification or
waiver must be approved in writing by the Special Committee). No waiver by any party hereto shall operate or be construed as a waiver
in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character,
and whether occurring before or after that waiver.
16.
Headings. Section headings in this Guarantee are for convenience of reference only and shall not govern the interpretation
of any provision of this Guarantee.
17.
No Presumption Against Drafting Party. Each party acknowledges that it and its counsel have been given an equal opportunity
to negotiate the terms and conditions of this Guarantee and that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party or any similar rule operating against the drafter of an agreement are not applicable to the construction or
interpretation of this Guarantee.
Remainder of this page intentionally left blank.
IN WITNESS WHEREOF, the parties have executed this
Guarantee as of the date first written above.
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GUARANTORS: |
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|
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PLATINUM EQUITY CAPITAL PARTNERS IV, L.P. |
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a Delaware limited partnership |
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|
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By: |
Platinum Equity Partners IV, L.P., |
| |
|
its general partner |
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|
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By: |
Platinum Equity Partners IV, LLC, |
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its general partner |
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|
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By: |
/s/Mary Ann Sigler |
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|
Name: |
Mary Ann Sigler |
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|
Title: |
Secretary, Vice President and Treasurer |
Signature Page to Limited Guarantee
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PLATINUM EQUITY CAPITAL PARTNERS V, L.P. |
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a Delaware limited partnership |
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|
| |
By: |
Platinum Equity Partners V, L.P., |
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its general partner |
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|
| |
By: |
Platinum Equity Partners V, LLC |
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its general partner |
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|
| |
By: |
/s/ Mary Ann Sigler |
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|
Name: |
Mary Ann Sigler |
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|
Title: |
Secretary, Vice President and Treasurer |
Signature Page to Limited Guarantee
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GUARANTEED PARTY: |
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|
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DIVERSEY HOLDINGS, LTD. |
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|
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By: |
/s/ Philip Wieland |
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Name: |
Philip Wieland |
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Title: |
Chief Executive Officer |
Signature Page to Limited Guarantee
