SUBSTITUTION OR
RELEASE OF ANY PERSON INTERESTED IN THE TRANSACTIONS CONTEMPLATED BY THE MERGER
AGREEMENT (PROVIDED, THAT ANY SUCH ADDITION, SUBSTITUTION OR RELEASE SHALL BE
SUBJECT TO THE PRIOR WRITTEN CONSENT OF THE BUYER PARTIES TO THE EXTENT
EXPRESSLY REQUIRED UNDER THE MERGER AGREEMENT); (D) ANY CHANGE IN THE CORPORATE
EXISTENCE, STRUCTURE OR OWNERSHIP OF ONE OR BOTH OF THE BUYER PARTIES OR ANY
OTHER PERSON LIABLE WITH RESPECT TO ANY OF THE OBLIGATIONS; (E) ANY INSOLVENCY,
BANKRUPTCY, REORGANIZATION OR OTHER SIMILAR PROCEEDING AFFECTING ONE OR BOTH OF
THE BUYER PARTIES, OR ANY OTHER PERSON LIABLE WITH RESPECT TO ANY OF THE
OBLIGATIONS; (F) SUBJECT TO THE LAST SENTENCE OF SECTION 2(A) HEREOF, ANY LACK
OF VALIDITY OR ENFORCEABILITY OF THE OBLIGATIONS, THE MERGER AGREEMENT OR ANY
AGREEMENT OR INSTRUMENT RELATING THERETO; (G) THE EXISTENCE OF ANY CLAIM,
SET-OFF OR OTHER RIGHTS WHICH THE GUARANTOR MAY HAVE AT ANY TIME AGAINST ONE OR
BOTH OF THE BUYER PARTIES, ANY OTHER GUARANTOR OR THE COMPANY, WHETHER IN
CONNECTION WITH THE OBLIGATIONS OR OTHERWISE; OR (H) THE ADEQUACY OF ANY OTHER
MEANS THE COMPANY MAY HAVE OF OBTAINING REPAYMENT OF ANY OF THE OBLIGATIONS.
TO
THE FULLEST EXTENT PERMITTED BY LAW, THE GUARANTOR HEREBY EXPRESSLY WAIVES ANY
AND ALL RIGHTS OR DEFENSES ARISING BY REASON OF ANY LAW WHICH WOULD OTHERWISE
REQUIRE ANY ELECTION OF REMEDIES BY THE COMPANY.
THE GUARANTOR WAIVES
PROMPTNESS, DILIGENCE, NOTICE OF THE ACCEPTANCE OF THIS LIMITED GUARANTEE AND OF
THE OBLIGATIONS, PRESENTMENT, DEMAND FOR PAYMENT, NOTICE OF NON-PERFORMANCE,
DEFAULT, DISHONOR AND PROTEST, NOTICE OF ANY OBLIGATIONS INCURRED AND ALL OTHER
NOTICES OF ANY KIND (EXCEPT FOR NOTICES TO BE PROVIDED TO THE BUYER PARTIES AND
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP IN ACCORDANCE WITH SECTION 9.2 OF THE
MERGER AGREEMENT), ALL DEFENSES WHICH MAY BE AVAILABLE BY VIRTUE OF ANY
VALUATION, STAY, MORATORIUM OR OTHER SIMILAR LAW NOW OR HEREAFTER IN EFFECT, ANY
RIGHT TO REQUIRE THE MARSHALLING OF ASSETS OF ONE OR BOTH OF THE BUYER PARTIES,
OR ANY OTHER PERSON LIABLE WITH RESPECT TO ANY OF THE OBLIGATIONS, AND ALL
SURETYSHIP DEFENSES GENERALLY (OTHER THAN BREACH BY THE COMPANY OF THIS LIMITED
GUARANTEE).
THE GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY AGREES THAT IT
SHALL NOT INSTITUTE, AND SHALL CAUSE ITS AFFILIATES NOT TO INSTITUTE, ANY
PROCEEDING ASSERTING THAT THIS LIMITED GUARANTEE IS ILLEGAL, INVALID OR
UNENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO THE EFFECTS OF
BANKRUPTCY, INSOLVENCY, FRAUDULENT TRANSFER, REORGANIZATION, MORATORIUM AND
SIMILAR LAWS OF GENERAL APPLICATION RELATING TO OR AFFECTING CREDITORS' RIGHTS,
AND GENERAL EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW).
THE 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 LIMITED GUARANTEE ARE KNOWINGLY MADE IN
CONTEMPLATION OF SUCH BENEFITS AND AFTER THE ADVICE OF COUNSEL.
4
4.
NO SUBROGATION.
THE GUARANTOR HEREBY UNCONDITIONALLY AND
IRREVOCABLY AGREES NOT TO EXERCISE ANY RIGHTS THAT IT MAY NOW HAVE OR