Section 10.03. Execution and Delivery of this Guarantee.
To further evidence the Guarantee set forth in Section 10.01, the
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form of Exhibit F, shall be endorsed on each Note authenticated and delivered by
the Trustee. Such Guarantee shall be executed on behalf of the Guarantor by
either manual or facsimile signature of two Officers of the Guarantor, each of
whom, in each case, shall have been duly authorized to so execute by all
requisite corporate action. The validity and enforceability of the Guarantee set
forth in Section 10.01 shall not be affected by the fact that it is not affixed
to any particular Note. The Guarantor hereby agrees that its Guarantee set forth
in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an Officer of the Guarantor whose signature is on this Indenture or a
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which such Guarantee is endorsed or at any time thereafter, the
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of any Guarantee set forth in this
Indenture on behalf of the Guarantor.
Section 10.04. Release of Guarantor.
(a) Upon the consummation of the Marcus Combination, the Guarantor's
Guarantee shall be released, and the Guarantor shall be deemed released from all
obligations under this Article Ten and this Indenture without any further action
required on the part of the Guarantor, the Trustee or any Holder. If the Marcus
Combination is not consummated, the Guarantor will not be so released and the
Guarantor or any entity surviving the Guarantor, as applicable, shall remain or
be liable under its Guarantee as provided in this Article Ten.
(b) The Trustee shall deliver an appropriate instrument evidencing the
release of the Guarantor upon receipt of a request by the Company or the
Guarantor accompanied by an Officers' Certificate and an Opinion of Counsel
certifying as to the compliance with this Section 10.04; provided the legal
counsel delivering such Opinion of Counsel may rely as to matters of fact on one
or more Officers Certificates of the Company or the Guarantor.
The Trustee shall execute any documents reasonably requested by the
Company or the Guarantor in order to evidence the release of the Guarantor from
its obligations under its Guarantee endorsed on the Notes, under this Article
Ten and under this Indenture.
Section 10.05. Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are discharged and
paid in full, the Guarantor hereby irrevocably waives and agrees not to exercise
any claim or other rights which it may now or hereafter acquire against either
Issuer that arise from the existence, payment, performance or enforcement of the
Issuers' obligations under the Notes or this Indenture and the Guarantor's
obligations under this Guarantee and this Indenture, in any such instance
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Holders against either Issuer, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from either Issuer,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to the