HEREBY AGREES THAT IN NO EVENT SHALL THE GUARANTOR BE
REQUIRED TO PAY TO ANY PERSON UNDER, IN RESPECT OF, OR IN CONNECTION WITH THIS
LIMITED GUARANTEE OR THE MERGER AGREEMENT, MORE THAN THE CAP, AND THAT GUARANTOR
SHALL NOT HAVE ANY OBLIGATION OR LIABILITY TO ANY PERSON RELATING TO, ARISING
OUT OF OR IN CONNECTION WITH, THIS LIMITED GUARANTEE OTHER THAN AS EXPRESSLY SET
FORTH HEREIN.
SHOULD EITHER OF THE BUYER PARTIES DEFAULT IN THE PROMPT AND
COMPLETE PAYMENT OR PERFORMANCE OF THE OBLIGATIONS, THE GUARANTOR'S
1
OBLIGATIONS HEREUNDER SHALL BECOME IMMEDIATELY DUE AND PAYABLE TO THE COMPANY.
THE COMPANY SHALL PROVIDE BUYER AND GUARANTOR WITH REASONABLE DOCUMENTATION, AS
APPLICABLE, OF THE COMPANY FINANCING FEES AND EXPENSES AND THE COMPANY
TRANSACTION EXPENSES AND SHALL USE REASONABLE BEST EFFORTS TO PROVIDE BUYER WITH
REASONABLE DOCUMENTATION OF THE CREDIT FACILITY FEES AND EXPENSES.
ALL SUMS
PAYABLE BY THE GUARANTOR HEREUNDER SHALL BE MADE IN IMMEDIATELY AVAILABLE
FUNDS.
THE COMPANY MAY, IN ITS SOLE DISCRETION, BRING AND PROSECUTE A SEPARATE
ACTION OR ACTIONS AGAINST THE GUARANTOR FOR THE FULL PAYMENT OF THE OBLIGATIONS,
SUBJECT TO THE CAP (PLUS ANY PREVAILING PARTY COSTS), REGARDLESS OF WHETHER THE
ACTION IS BROUGHT AGAINST ONE OR BOTH OF THE BUYER PARTIES OR ANY OTHER
GUARANTOR OR WHETHER ONE OR BOTH OF THE BUYER PARTIES OR ANY OTHER GUARANTOR IS
JOINED IN ANY SUCH ACTION OR ACTIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS LIMITED GUARANTEE OR ANY OTHER DOCUMENT, THE OBLIGATIONS OF
THE GUARANTOR UNDER THIS LIMITED GUARANTEE AND OF ANY OTHER GUARANTOR UNDER ANY
OTHER GUARANTEE SHALL BE SEVERAL AND NOT JOINT.
2.
NATURE OF LIMITED GUARANTEE.
(A)
THE COMPANY SHALL NOT BE OBLIGATED TO FILE ANY CLAIM RELATING TO
THE OBLIGATIONS IN THE EVENT THAT ONE OR BOTH OF THE BUYER PARTIES BECOMES
SUBJECT TO A BANKRUPTCY, REORGANIZATION OR SIMILAR PROCEEDING, AND THE FAILURE
OF THE COMPANY TO SO FILE SHALL NOT AFFECT THE GUARANTOR'S OBLIGATIONS
HEREUNDER.
IN THE EVENT THAT ANY PAYMENT TO THE COMPANY IN RESPECT OF THE
OBLIGATIONS IS RESCINDED OR MUST OTHERWISE BE RETURNED FOR ANY REASON
WHATSOEVER, THE GUARANTOR SHALL REMAIN LIABLE HEREUNDER WITH RESPECT TO THE
OBLIGATIONS (PLUS ANY PREVAILING PARTY COSTS) AS IF SUCH PAYMENT HAD NOT BEEN
MADE (SUBJECT TO THE TERMS HEREOF).
THIS IS AN UNCONDITIONAL GUARANTEE OF
PAYMENT AND NOT OF COLLECTIBILITY.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
LIMITED GUARANTEE, THE COMPANY HEREBY AGREES THAT (I) THE GUARANTOR MAY ASSERT,
AS A DEFENSE TO ANY PAYMENT OR PERFORMANCE BY THE GUARANTOR UNDER THIS LIMITED
GUARANTEE, ANY DEFENSE TO SUCH PAYMENT OR PERFORMANCE THAT THE BUYER PARTIES
COULD ASSERT AGAINST THE COMPANY UNDER THE TERMS OF THE MERGER AGREEMENT, OTHER
THAN ANY SUCH DEFENSE ARISING OUT OF, DUE TO, OR AS A RESULT OF, THE INSOLVENCY
OR BANKRUPTCY OF ANY BUYER PARTY OR ANY OF THE OTHER GUARANTORS, OR ANY DEFENSE
BASED UPON A CLAIM OF FRAUDULENT CONVEYANCE AND SIMILAR LAWS OF GENERAL
APPLICABILITY RELATING TO CREDITORS RIGHTS; AND (II) TO THE EXTENT