itself its Subsidiaries and its Affiliates, not to assert
any claim or counterclaim against any such persons with regard to such matters,
all such claims and counterclaims, now existing or hereafter arising, whether
known or unknown, foreseen or unforeseeable, being hereby waived, released and
forever discharged.
32. Creditors Not Fiduciary to Guarantors, etc. The relationship among any
Guarantor and its Affiliates, on the one hand, and the Administrative Agent and
the other Creditors, on the other hand, is solely that of debtor and creditor,
and the Administrative Agent and the other Creditors have no fiduciary or other
special relationship with any Guarantor or any of its Affiliates, and no term or
provision of any Guaranteed Document, no course of dealing, no written or oral
communication, or other action, shall be construed so as to deem such
relationship to be other than that of debtor and creditor.
33. Counterparts. This Guaranty may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, including by way
of facsimile transmission capable of authentication, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Company and the Administrative
Agent.
34. Additional Guarantors. Additional Guarantors may become a party to this
Guaranty by execution of a guaranty supplement in form and substance acceptable
to the Administrative Agent.
35.
Waiver of Jury Trial. EACH GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH OTHER
CREDITOR (BY THEIR ACCEPTANCE OF THE BENEFITS HEREOF) HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER CREDIT DOCUMENTS
(INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER MODIFICATIONS
RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH OTHER CREDITOR (BY
THEIR ACCEPTANCE OF THE BENEFITS HEREOF) HEREBY (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PERSONS PARTY HERETO OR BENEFITTED HEREBY HAVE BEEN
INDUCED TO ENTER INTO OR ACCEPT THE BENEFITS OF THIS GUARANTY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and
delivered by a duly authorized officer as of the date first above written.
GUARANTORS: MEMC HOLDINGS CORPORATION By:
/s/ THOMAS E. LINNEN Name:
Thomas
E. Linnen Title:
President and Asst. Secretary MEMC INTERNATIONAL, INC. By:
/s/ THOMAS E. LINNEN Name:
Thomas E. Linnen Title:
President and Asst.
Secretary MEMC PASADENA, INC. By:
/s/ THOMAS E. LINNEN Name:
Thomas E.
Linnen Title:
CFO and Asst. Secretary MEMC SOUTHWEST, INC.