Purchase Agreement. All notices to the Company hereunder shall be
delivered as set forth in the Purchase Agreement.
3
8.
CONTINUING GUARANTEE. THIS GUARANTEE SHALL REMAIN IN FULL FORCE
AND EFFECT AND SHALL BE BINDING ON THE GUARANTOR, ITS SUCCESSORS AND ASSIGNS
UNTIL ALL AMOUNTS PAYABLE UNDER THIS GUARANTEE HAVE BEEN INDEFEASIBLY PAID OR
SATISFIED IN FULL. NOTWITHSTANDING THE FOREGOING, THIS GUARANTEE SHALL TERMINATE
AND THE GUARANTOR SHALL HAVE NO FURTHER OBLIGATIONS UNDER THIS GUARANTEE AS OF
THE EARLIEST OF (A) THE CLOSING OF THE TRANSACTIONS, (B) THE TERMINATION OF THE
PURCHASE AGREEMENT IN ACCORDANCE WITH ITS TERMS BY MUTUAL CONSENT OF THE PARTIES
OR OTHERWISE UNDER CIRCUMSTANCES IN WHICH BUYER WOULD THEREAFTER HAVE NO
LIABILITY TO THE COMPANY FOR ANY OBLIGATION UNDER THE PURCHASE AGREEMENT, OR
(C) THE FIRST ANNIVERSARY OF ANY TERMINATION OF THE PURCHASE AGREEMENT IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS TO A CLAIM FOR PAYMENT OF ANY OBLIGATION
PRESENTED BY THE COMPANY TO BUYER PRIOR TO SUCH FIRST ANNIVERSARY.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THE COMPANY OR ANY OF ITS
AFFILIATES ASSERTS IN ANY LITIGATION OR OTHER PROCEEDING THAT THE PROVISIONS OF
THIS SECTION 8 OR SECTION 9 HEREOF ARE ILLEGAL, INVALID OR UNENFORCEABLE IN
WHOLE OR IN PART, OR ASSERTING ANY THEORY OF LIABILITY AGAINST THE GUARANTOR OR
ANY AFFILIATE OF THE GUARANTOR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY
THE PURCHASE AGREEMENT OTHER THAN THE LIABILITY OF THE GUARANTOR UNDER THIS
GUARANTEE, THEN (I) THE OBLIGATIONS OF THE GUARANTOR UNDER THIS GUARANTEE SHALL
TERMINATE AB INITIO AND BE NULL AND VOID, AND (II) IF THE GUARANTOR HAS
PREVIOUSLY MADE ANY PAYMENTS UNDER THIS GUARANTEE, IT SHALL BE ENTITLED TO
RECOVER SUCH PAYMENTS; PROVIDED, HOWEVER, THAT IF THE GUARANTOR ASSERTS IN ANY
LITIGATION OR OTHER PROCEEDING THAT THIS GUARANTEE IS ILLEGAL, INVALID OR
UNENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO THE EFFECTS OF
BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, REORGANIZATION, MORATORIUM OR
OTHER SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND TO GENERAL
EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW),
THEN, TO THE EXTENT THE COMPANY PREVAILS IN SUCH LITIGATION OR PROCEEDING, THE
GUARANTOR SHALL PAY ON DEMAND ALL REASONABLE FEES AND OUT-OF-POCKET EXPENSES OF
THE COMPANY IN CONNECTION WITH SUCH LITIGATION OR PROCEEDING.
9.
NO RECOURSE.
A.
THE COMPANY ACKNOWLEDGES THAT THE SOLE ASSETS OF BUYER ARE CASH
IN A DE MINIMUS AMOUNT AND ITS RIGHTS UNDER THE PURCHASE AGREEMENT, AND THAT NO
ADDITIONAL FUNDS ARE EXPECTED TO BE CONTRIBUTED TO BUYER 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, AND NOTWITHSTANDING THE FACT THAT THE GUARANTOR MAY BE A LIMITED
PARTNERSHIP, BY ITS ACCEPTANCE OF THE BENEFITS OF THIS GUARANTEE, THE COMPANY
ACKNOWLEDGES AND AGREES THAT, OTHER THAN WITH RESPECT TO THE COMPANY'S RIGHTS
UNDER THIS GUARANTEE, IT HAS NO RIGHT OF RECOVERY AGAINST, AND NO LIABILITY
SHALL ATTACH TO, THE FORMER, CURRENT OR FUTURE STOCKHOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES,