UNTIL THE INDEFEASIBLE
PAYMENT AND SATISFACTION IN FULL OF THE GUARANTEED OBLIGATIONS, SHALL BE BINDING
UPON THE GUARANTOR, ITS SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT
OF, AND BE ENFORCEABLE BY, THE COMPANY AND ITS RESPECTIVE SUCCESSORS,
TRANSFEREES AND ASSIGNS.
NOTWITHSTANDING THE
4
FOREGOING, THIS GUARANTY SHALL TERMINATE AND THE GUARANTOR SHALL HAVE NO FURTHER
RIGHTS OR OBLIGATIONS UNDER THIS GUARANTY AS OF THE EARLIER OF (I) THE EFFECTIVE
TIME AND (II) THE END OF THREE (3) MONTHS FOLLOWING OF THE DATE ON WHICH THE
MERGER AGREEMENT IS TERMINATED IN ACCORDANCE WITH ITS TERMS, EXCEPT IN
CONNECTION WITH A CLAIM FOR PAYMENT OF ANY GUARANTEED OBLIGATION PRESENTED BY
THE COMPANY TO PARENT OR THE GUARANTOR DURING SUCH THREE-MONTH PERIOD.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THE COMPANY OR ANY OF ITS
CONTROLLED AFFILIATES ASSERTS IN ANY LITIGATION OR OTHER PROCEEDING THAT THE
PROVISIONS OF SECTION 1 HEREOF LIMITING THE GUARANTOR'S LIABILITY TO THE PARENT
TERMINATION FEE OR THE PROVISIONS OF SECTION 4 HEREOF OR THIS SECTION 6 ARE
ILLEGAL, INVALID OR UNENFORCEABLE IN WHOLE OR IN PART, OR ASSERTING ANY THEORY
OF LIABILITY AGAINST ANY AFFILIATE OR, OTHER THAN ITS RIGHT TO RECOVER FROM THE
GUARANTOR FOR UP TO THE AMOUNT OF THE GUARANTEED OBLIGATIONS (SUBJECT TO
LIMITATIONS DESCRIBED HEREIN), THE GUARANTOR OR PARENT,
THEN (I) THE
OBLIGATIONS OF THE GUARANTOR UNDER THIS GUARANTY SHALL TERMINATE AB INITIO AND
BE NULL AND VOID, AND (II) NEITHER THE GUARANTOR NOR ANY AFFILIATE SHALL HAVE
ANY LIABILITY TO THE COMPANY WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY
THE MERGER AGREEMENT OR UNDER THIS GUARANTY; PROVIDED, THAT THE FOREGOING SHALL
NOT AFFECT THE RIGHT OF THE COMPANY TO ASSERT ANY CLAIM UNDER THE
CONFIDENTIALITY AGREEMENT AGAINST THE OTHER PARTIES THERETO.
7.
ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES.
THIS GUARANTY,
TOGETHER WITH THE MERGER AGREEMENT AND THE SUPPORT AGREEMENTS, CONSTITUTES THE
ENTIRE AGREEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY
AND ALL PRIOR DISCUSSIONS, NEGOTIATIONS, PROPOSALS, UNDERTAKINGS, UNDERSTANDINGS
AND AGREEMENTS, WHETHER WRITTEN OR ORAL, AMONG PARENT, ACQUISITION SUB AND THE
GUARANTOR OR ANY OF THEIR AFFILIATES ON THE ONE HAND, AND THE COMPANY OR ANY OF
ITS AFFILIATES ON THE OTHER HAND.
THIS GUARANTY IS NOT INTENDED TO AND SHALL
NOT CONFER UPON ANY PERSON OTHER THAN THE PARTIES HERETO AND THE AFFILIATES OF
GUARANTOR, AS PROVIDED IN SECTION 4, ANY RIGHTS OR REMEDIES HEREUNDER.
8.
AMENDMENTS AND WAIVERS.
NO AMENDMENT OR WAIVER OF ANY PROVISION
OF THIS GUARANTY WILL BE VALID AND BINDING UNLESS IT IS IN WRITING AND SIGNED,
IN THE CASE OF AN AMENDMENT, BY THE GUARANTOR AND THE COMPANY, OR IN THE CASE OF
WAIVER, BY THE PARTY AGAINST WHOM THE WAIVER IS TO BE EFFECTIVE.
NO WAIVER BY
ANY PARTY OF ANY BREACH OR VIOLATION OF, OR DEFAULT UNDER, THIS GUARANTY,
WHETHER INTENTIONAL OR NOT, WILL BE DEEMED TO EXTEND TO ANY PRIOR OR SUBSEQUENT
BREACH, VIOLATION OR DEFAULT HEREUNDER OR AFFECT IN ANY WAY ANY RIGHTS ARISING
BY VIRTUE OF ANY PRIOR