the Company hereunder shall be
delivered as set forth in the Purchase Agreement.
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, AGENTS, AFFILIATES,
MEMBERS, MANAGERS, GENERAL OR LIMITED