Common use of Affected Parties Clause in Contracts

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC. By: /s/ Fxxx Xxxxxxxx Name: Fxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP CO. By: /s/ Mxxx Xxxxxx Name: Mxxx Xxxxxx Title: Chief Investment Officer & Executive Vice President of Capital Markets Acknowledged and agreed as to matters to the Agent: MXXXXXX LYNCH, PXXXXX, FXXXXX & SXXXX INCORPORATED Solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxx Name: Axxxxxxx Xxxxx Title: Authorized Signatory EXHIBIT A GUARANTEE OF MXXXXXX LXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Financial Markets, Inc., a company incorporated in Delaware (“ML”), under the terms of the Confirmation of OTC Convertible Note Hedge between the Company and ML (ML as Seller), dated as of October 11, 2007 (the “Confirmation”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Confirmation; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the Confirmation. This Guarantee shall continue to be effective if MX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML under the Confirmation arising before or after such termination. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its terms.

Affected Parties. For purposes of Section 6(e) of the Master Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our the agreement between Party B and MLI by executing the copy of this Confirmation enclosed for that purpose and returning it to usthe Agent by facsimile transmission (Telecopier No. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC(000) 000-0000). By: /s/ Fxxx Xxxxxxxx Name: Fxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP CO. MXXXXXX LXXXX INTERNATIONAL By: /s/ Mxxx Wxxxxxx Xxxxxx Name: Mxxx Wxxxxxx Xxxxxx Title: Chief Investment Officer & Executive Vice President of Capital Markets Senior Specialist and Authorized Signatory Acknowledged and agreed as to matters relating to the Agent: MXXXXXX LYNCH, PXXXXX, FXXXXX & SXXXX INCORPORATED Solely INCORPORATED, solely in its capacity as Agent hereunder hxxxxxxxx By: /s/ Axxxxxxx Xxxxx Fxxx Xxxxxxxx Name: Axxxxxxx Xxxxx Fxxx Xxxxxxxx Title: Vice President and Authorized Signatory EXHIBIT AFFILIATED MANAGERS GROUP, INC. By: /s/ Jxxx Xxxxxxxx, III Name: Jxxx Xxxxxxxx, XXX Title: Executive Vice President, General Counsel and Secretary Exhibit A GUARANTEE OF MXXXXXX LXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. Affiliated Managers Group, Inc. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Financial Markets, Inc.International, a company incorporated in Delaware organized under the laws of England and Wales (“ML”), under the terms of the Confirmation of OTC Convertible Note Hedge Forward Stock Purchase Transaction between the Company and ML (ML as Seller), dated as of October 1112, 2007 (the “Confirmation”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Confirmation; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the Confirmation. This Guarantee shall continue to be effective if MX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML under the Confirmation arising before or after such terminationConfirmation. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its terms.

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Master Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC. XXXXXXX XXXXX INTERNATIONAL By: /s/ Fxxx Xxxxxxxx Name: Fxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL MAX CAPITAL GROUP COLTD. By: /s/ Mxxx Xxxxxx Name: Mxxx Xxxxxx Title: Chief Investment Officer & Executive Vice President of Capital Markets Acknowledged and agreed as to matters relating to the Agent: MXXXXXX XXXXXXX LYNCH, PXXXXXXXXXXX, FXXXXX XXXXXX & SXXXX INCORPORATED Solely XXXXX INCORPORATED, solely in its capacity as Agent hereunder xxxxxxxxx By: /s/ Axxxxxxx Xxxxx Name: Axxxxxxx Xxxxx Title: Authorized Signatory EXHIBIT A GUARANTEE FORM OF MXXXXXX LXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Financial Markets, Inc., a company incorporated in Delaware (“ML”), under the terms of the SUPPLEMENTAL CONFIRMATION Supplemental Confirmation of OTC Convertible Note Hedge Collared ASAP Minus Date: December 24, 2007 ML Ref: To: Max Capital Group Ltd. (“Counterparty”) Attention: From: Xxxxx Xxxxxx Xxxxxxx Xxxxx International (“MLI”) Xxxxxxx Xxxxx Financial Centre 0 Xxxx Xxxxxx Xxxxxx London EC1A 1HQ Dear Sir / Madam: Capitalized terms used herein, unless defined herein, have the meanings set forth in the Master Confirmation of OTC Collared ASAP Minus between the Company and ML (ML as Seller)MLI, dated as of October 11December 24, 2007 (the “Confirmation”), including, in case 2007. The purpose of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according this Supplemental Confirmation is to confirm the terms thereof. In case and conditions of the failure of ML punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by Transaction under the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this GuaranteeMaster Confirmation. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations hereunder shall be unconditional, irrespective The terms of the validityTransaction to which the Supplemental Confirmation relates are as follows: Trade Date: January 2, regularity or enforceability 2008 Prepayment Amount: $ 50,000,000 Forward Price Adjustment Amount: 2.29% of the Confirmation; the absence Hedge Period Reference Price Initial Share Delivery: A number of any action Shares equal to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment 90% of the amounts payable under Minimum Shares. First Acceleration Date: 22 scheduled Scheduled Trading Days after the ConfirmationHedge Completion Date. This Guarantee shall continue Scheduled Termination Date: 88 Scheduled Trading Days after the Hedge Completion Date subject to be effective if MX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any MLI’s right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes accelerate the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect Termination Date to any obligation of ML under the Confirmation arising before date on or after such termination. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its termsFirst Acceleration Date.

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge [Signatures follow on separate page] Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC. INTERNATIONAL By: /s/ Fxxx Xxxxxxxx Name: Fxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP CONEW RIVER PHARMACEUTICALS INC. By: /s/ Mxxx Xxxxxx Kxxxx X. Xxxxxxxx Name: Mxxx Xxxxxx Kxxxx X. Xxxxxxxx Title: Chief Investment Operating Officer, Chief Financial Officer & Executive Vice President of Capital Markets and Secretary Acknowledged and agreed as to matters to the Agent: MXXXXXX LYNCH, PXXXXX, FXXXXX & SXXXX INCORPORATED INCORPORATED, Solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxx Rxxxxx Xxxxxxxx Name: Axxxxxxx Xxxxx Title: Authorized Signatory Rxxxxx Xxxxxxxx EXHIBIT A GUARANTEE OF MXXXXXX LXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. New River Pharmaceuticals Inc. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Financial Markets, Inc.International, a company incorporated in Delaware organized under the laws of England and Wales (“ML”), under the terms of the Confirmation of OTC Convertible Note Hedge Warrant Transaction between the Company and ML (ML as SellerBuyer), dated as of October 11July 19, 2007 2006 (the “Confirmation”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Confirmation; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the Confirmation. This Guarantee shall continue to be effective if MX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML under the Confirmation arising before or after such terminationConfirmation. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its terms.

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Master Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC. XXXXXXX XXXXX INTERNATIONAL By: /s/ Fxxx Xxxxxxxx X. Xxxxxx Name: Fxxx Xxxxxxxx Xxxxxxx Xxxxxx Title: Authorized Authorised Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP COFRANKLIN RESOURCES, INC. By: /s/ Mxxx Xxxxxx Xxxxxxx Xxxxx Name: Mxxx Xxxxxx Xxxxxxx Xxxxx Title: Chief Investment Officer & Executive Vice President of Capital Markets S.V.P. / C.F.O. Acknowledged and agreed as to matters relating to the Agent: MXXXXXX LYNCHXXXXXXX XXXXX, PXXXXXXXXXXX, FXXXXX XXXXXX & SXXXX INCORPORATED Solely XXXXX INCORPORATED, solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxxxxx Xxxxx Name: Axxxxxxx Xxxxxxxx Xxxxx Title: Authorized Signatory EXHIBIT A FORM OF SUPPLEMENTAL CONFIRMATION Supplemental Confirmation of OTC ASAP Minus (VWAP Pricing) Date: March 13, 2007 ML Ref: • To: Franklin Resources, Inc. (“Counterparty”) Attention: Xxxxxx Xxxxxxx From: Xxxxxxx Xxxxx International (“MLI”) Xxxxxxx Xxxxx Financial Centre 0 Xxxx Xxxxxx Xxxxxx London EC1A 1HQ Dear Sir / Madam: Capitalized terms used herein, unless defined herein, have the meanings set forth in the Master Confirmation of OTC ASAP Minus (VWAP Pricing) between Counterparty and MLI, dated as of March 13, 2007. The purpose of this Supplemental Confirmation is to confirm the terms and conditions of a Transaction under the Master Confirmation. The terms of the Transaction to which the Supplemental Confirmation relates are as follows: Trade Date: March 13, 2007 Initial Share Price: USD $116.14 Valuation Date: *******, 2007 First Acceleration Date: *******, 2007 Number of Shares: 4,000,000 Aggregate Adjustment Amount: ******* Ordinary Dividend Amount: USD $******* Scheduled Dividend Dates: ********************* Settlement Price Adjustment Amount: ******* basis points multiplied by ******* Valuation Period: Notwithstanding the definition of Valuation Period in the Master Confirmation dated March 13, 2007, the following definition shall apply to this Transaction: “For each Transaction, each Scheduled Trading Day from and including the third Business Day after the Trade Date to and including the Valuation Date; provided, that with respect to each Suspension Event (if any) affecting such Scheduled Trading Days, MLI may, by written notice to Counterparty (which notice shall not specify the reason for MLI’s election to suspend the Valuation Period), exclude the Scheduled Trading Day(s) on which such Suspension Event has occurred (such days, “Suspension Event Days”) and extend the last possible Valuation Date by the total number of such Suspension Event Days; provided, further, that notwithstanding anything to the contrary in the Equity Definitions, to the extent that any Scheduled Trading Days in the Valuation Period are Disrupted Days, the Calculation Agent may exclude such Disrupted Days and extend the last possible Valuation Date by the number of such Disrupted Days (in addition to any Suspension Event Days, without duplication). Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Supplemental Confirmation enclosed for that purpose and returning it to us. Very truly yours, XXXXXXX XXXXX INTERNATIONAL By: /s/ X. Xxxxxx Name: Xxxxxxx Xxxxxx Title: Authorised Signatory Confirmed as of the date first above written: FRANKLIN RESOURCES, INC. By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: S.V.P. / C.F.O. Acknowledged and agreed as to matters relating to the Agent: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED, solely in its capacity as Agent hereunder By: /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: EXHIBIT B GUARANTEE OF MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. Franklin Resources, Inc. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Financial Markets, Inc.Xxxxxxx Xxxxx International, a company incorporated in Delaware organized under the laws of England and Wales (“MLMLI”), under the terms of the Master Confirmation of OTC Convertible Note Hedge ASAP Minus (VWAP Pricing) between the Company and ML (ML as Seller)MLI, dated as of October 11March 13, 2007 (with the Supplemental Confirmations thereto, the “ConfirmationAgreement”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML MLI punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML MLI or otherwise, all as though such payment had not been made. This is a guarantee of payment in full, not collection. ML & Co. hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the ConfirmationAgreement; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML MLI or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML & Co. covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the ConfirmationAgreement. This Guarantee shall continue to be effective if MX xxxxxx MLI merges or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of MLMLI; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against MLMLI. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the ConfirmationAgreement, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML MLI under the Confirmation arising before or after Agreement entered into prior to the effectiveness of such notice of termination. This Guarantee becomes effective concurrent with the effectiveness of the ConfirmationAgreement, according to its terms.

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Master Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC. XXXXXXX XXXXX INTERNATIONAL By: /s/ Fxxx Xxxxxxxx Name: Fxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP COOPENWAVE SYSTEMS INC. By: /s/ Mxxx Xxxxxx Name: Mxxx Xxxxxx Title: Chief Investment Officer & Executive Vice President of Capital Markets Acknowledged and agreed as to matters relating to the Agent: MXXXXXX LYNCHXXXXXXX XXXXX, PXXXXXXXXXXX, FXXXXX XXXXXX & SXXXX INCORPORATED Solely XXXXX INCORPORATED, solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxx Name: Axxxxxxx Xxxxx Title: Authorized Signatory EXHIBIT A FORM OF SUPPLEMENTAL CONFIRMATION Supplemental Confirmation of OTC VWAP Minus Date: ML Ref: To: Openwave Systems Inc. (“Counterparty”) Attention: Xxx Xxxxxx From: Xxxxxxx Xxxxx International (“MLI”) Xxxxxxx Xxxxx Financial Centre 0 Xxxx Xxxxxx Xxxxxx London EC1A 1HQ Dear Sir / Madam: Capitalized terms used herein, unless defined herein, have the meanings set forth in the Master Confirmation of OTC VWAP Minus between Counterparty and MLI, dated as of January 30, 2007. The purpose of this Supplemental Confirmation is to confirm the terms and conditions of a Transaction under the Master Confirmation. The terms of the Transaction to which the Supplemental Confirmation relates are as follows: Trade Date: Prepayment Amount: Prepayment Date: Valuation Date: First Acceleration Date: Settlement Price Adjustment Amount: Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Supplemental Confirmation enclosed for that purpose and returning it to us. Very truly yours, XXXXXXX XXXXX INTERNATIONAL By: Name: Title: Confirmed as of the date first above written: OPENWAVE SYSTEMS INC. By: Name: Title: Acknowledged and agreed as to matters relating to the Agent: XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED, solely in its capacity as Agent xxxxxxxxx By: Name: Title: EXHIBIT B GUARANTEE OF MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. Openwave Systems Inc. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Financial Markets, Inc.Xxxxxxx Xxxxx International, a company incorporated in Delaware organized under the laws of England and Wales (“MLMLI”), under the terms of the Master Confirmation of OTC Convertible Note Hedge VWAP Minus between the Company and ML (ML as Seller)MLI, dated as of October 11January 30, 2007 (with the Supplemental Confirmations thereto, the “ConfirmationAgreement”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML MLI punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML MLI or otherwise, all as though such payment had not been made. This is a guarantee of payment in full, not collection. ML & Co. hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the ConfirmationAgreement; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML MLI or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML & Co. covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the ConfirmationAgreement. This Guarantee shall continue to be effective if MX xxxxxx MLI merges or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of MLMLI; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against MLMLI. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the ConfirmationAgreement, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML MLI under the Confirmation arising before or after Agreement entered into prior to the effectiveness of such notice of termination. This Guarantee becomes effective concurrent with the effectiveness of the ConfirmationAgreement, according to its terms.

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Master Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC. INTERNATIONAL By: /s/ Fxxx Xxxxxxxx Name: Fxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP CO. AFLAC INCORPORATED By: /s/ Mxxx Xxxxxx Name: Mxxx Xxxxxx Title: Chief Investment Officer & Executive Vice President of Capital Markets Acknowledged and agreed as to matters relating to the Agent: MXXXXXX LYNCHXXXXX, PXXXXXXXXXXX, FXXXXX & SXXXX INCORPORATED Solely INCORPORATED, solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxx Name: Axxxxxxx Xxxxx Title: Authorized Signatory EXHIBIT A GUARANTEE FORM OF MXXXXXX LXXXX & CO., INC. FOR VALUE RECEIVED, receipt SUPPLEMENTAL CONFIRMATION Supplemental Confirmation of which is hereby acknowledged, MXXXXXX LXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware ASAP Minus (VWAP Pricing) Date: ML Ref: To: (“ML & Co.Counterparty”), hereby unconditionally guarantees to Morgans Hotel Group Co. ) Attention: From: Mxxxxxx Lxxxx International (the “CompanyMLI”), the due and punctual payment of any and all amounts payable by ) Mxxxxxx Lxxxx Financial MarketsCentre 2 Xxxx Xxxxxx Xxxxxx London EC1A 1HQ Dear Sir / Madam: Capitalized terms used herein, Inc.unless defined herein, a company incorporated have the meanings set forth in Delaware (“ML”), under the terms of the Master Confirmation of OTC Convertible Note Hedge ASAP Minus between the Company Counterparty and ML (ML as Seller)MLI, dated as of October 11February 4, 2007 (2008. The purpose of this Supplemental Confirmation is to confirm the “terms and conditions of a Transaction under the Master Confirmation”). The terms of the Transaction to which the Supplemental Confirmation relates are as follows: Trade Date: Initial Share Price: $ Scheduled Valuation Date: First Acceleration Date: Number of Shares: Aggregate Adjustment Amount: Ordinary Dividend Amount: Scheduled Ex-dividend Date: Settlement Price Adjustment Amount: Account Details: Account for payments to Counterparty: Account for payment to MLI: Address for notices or communications to Counterparty for all purposes: Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Supplemental Confirmation enclosed for that purpose and returning it to us. Very truly yours, including, in case MXXXXXX LXXXX INTERNATIONAL By: Name: Title: Confirmed as of default, interest on any amount due, when the date first above written: AFLAC INCORPORATED By: Name: Title: Acknowledged and agreed as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to matters relating to the terms thereof. In case of the failure of ML punctually to make any such paymentAgent: MXXXXXX XXXXX, ML XXXXXX, FXXXXX & Co. hereby agrees to make such paymentSXXXX INCORPORATED, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company solely in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (its capacity as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations Agent hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Confirmation; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the Confirmation. This Guarantee shall continue to be effective if MX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML under the Confirmation arising before or after such termination. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its terms.By: Name: Title:

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge (2015) [Signatures follow on separate page] OTC Convertible Note Hedge (2015) Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX FINANCIAL MARKETS, INC. XXXXXXX XXXXX INTERNATIONAL By: /s/ Fxxx Xxxxxxxx Xxxxx Xxxxx Name: Fxxx Xxxxxxxx Xxxxx Xxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP COMYLAN INC. By: /s/ Mxxx Xxxxxx X. Xxxxxxxxx Name: Mxxx Xxxxxx X. Xxxxxxxxx Title: Chief Investment Officer & Executive Vice President of Capital Markets and Chief Financial Officer Acknowledged and agreed as to matters to the Agent: MXXXXXX XXXXXXX LYNCH, PXXXXXXXXXXX, FXXXXX XXXXXX & SXXXX XXXXX INCORPORATED Solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxx Name: Axxxxxxx Xxxxx /s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx Title: Authorized Signatory EXHIBIT A GUARANTEE OF MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. Mylan Inc. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Financial Markets, Inc.Xxxxxxx Xxxxx International, a company incorporated in Delaware organized under the laws of England and Wales (“ML”), under the terms of the Confirmation of OTC Convertible Note Hedge between the Company and ML (ML as Seller), dated as of October 11September 9, 2007 2008, with respect to the Reference Notes (as defined therein) of Company due 2015 (the “Confirmation”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations hereunder constitute a guarantee of payment when due and not of collection and that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Confirmation; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the Confirmation. This Guarantee shall continue to be effective if MX XX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. shall not exercise any rights that it may acquire by way of subrogation as a result of a payment by it under this Guarantee at any time when any of the obligations of ML shall have become due and remain unpaid. Any amount paid to ML & Co. in violation of the preceding sentence shall be held for the benefit of the Company and shall forthwith be paid to the Company to be credited and applied to such obligations of ML then due and unpaid. Subject to the foregoing, upon payment of all such obligations of ML, ML & Co. shall be subrogated to the rights of the Company against ML, and the Company agrees to take at ML & Co.’s expense such steps as ML &Co. may reasonably request to implement such subrogation. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML under the Confirmation arising before or after such termination. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its terms.

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX XXXXXXX XXXXX FINANCIAL MARKETS, INC. By: /s/ Fxxx Xxxx Xxxxxxxx Name: Fxxx Xxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP COAAR CORP. By: /s/ Mxxx Xxxxxx Xxxxxxx X. Xxxxxxxxx Name: Mxxx Xxxxxx Xxxxxxx X. Xxxxxxxxx Title: Chief Investment Officer President & Executive Vice President of Capital Markets COO Acknowledged and agreed as to matters to the Agent: MXXXXXX XXXXXXX LYNCH, PXXXXXXXXXXX, FXXXXX XXXXXX & SXXXX XXXXX INCORPORATED Solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxxxxx Xxxxx Name: Axxxxxxx Xxxxxxxx Xxxxx Title: Authorized Signatory EXHIBIT A GUARANTEE OF MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. AAR Corp. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Xxxxxxx Xxxxx Financial Markets, Inc., a company incorporated in Delaware (“ML”), under the terms of the Confirmation of OTC Convertible Note Hedge between the Company and ML (ML as Seller), dated as of October 11February 5, 2007 2008, with respect to the Reference Notes (as defined therein) of Company due 2014 (the “Confirmation”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations hereunder constitute a guarantee of payment when due and not of collection and that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Confirmation; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the Confirmation. This Guarantee shall continue to be effective if MX XX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. shall not exercise any rights that it may acquire by way of subrogation as a result of a payment by it under this Guarantee at any time when any of the obligations of ML shall have become due and remain unpaid. Any amount paid to ML & Co. in violation of the preceding sentence shall be held for the benefit of the Company and shall forthwith be paid to the Company to be credited and applied to such obligations of ML then due and unpaid. Subject to the foregoing, upon payment of all such obligations of ML, ML & Co. shall be subrogated to the rights of the Company against ML, and the Company agrees to take at ML & Co.’s expense such steps as ML &Co. may reasonably request to implement such subrogation. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML under the Confirmation arising before or after such termination. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its terms.

Affected Parties. For purposes of Section 6(e) of the Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event. OTC Convertible Note Hedge Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us. Very truly yours, MXXXXXX LXXXX XXXXXXX XXXXX FINANCIAL MARKETS, INC. By: /s/ Fxxx Xxxx Xxxxxxxx Name: Fxxx Xxxx Xxxxxxxx Title: Authorized Signatory Confirmed as of the date first above written: MORGANS HOTEL GROUP COAAR CORP. By: /s/ Mxxx Xxxxxx Xxxxxxx X. Xxxxxxxxx Name: Mxxx Xxxxxx Xxxxxxx X. Xxxxxxxxx Title: Chief Investment Officer President & Executive Vice President of Capital Markets COO Acknowledged and agreed as to matters to the Agent: MXXXXXX XXXXXXX LYNCH, PXXXXXXXXXXX, FXXXXX XXXXXX & SXXXX XXXXX INCORPORATED Solely in its capacity as Agent hereunder By: /s/ Axxxxxxx Xxxxxxxx Xxxxx Name: Axxxxxxx Xxxxxxxx Xxxxx Title: Authorized Signatory EXHIBIT A GUARANTEE OF MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC. FOR VALUE RECEIVED, receipt of which is hereby acknowledged, MXXXXXX LXXXX XXXXXXX XXXXX & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (“ML & Co.”), hereby unconditionally guarantees to Morgans Hotel Group Co. AAR Corp. (the “Company”), the due and punctual payment of any and all amounts payable by Mxxxxxx Lxxxx Xxxxxxx Xxxxx Financial Markets, Inc., a company incorporated in Delaware (“ML”), under the terms of the Confirmation of OTC Convertible Note Hedge between the Company and ML (ML as Seller), dated as of October 11February 5, 2007 2008, with respect to the Reference Notes (as defined therein) of Company due 2016 (the “Confirmation”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, according to the terms thereof. In case of the failure of ML punctually to make any such payment, ML & Co. hereby agrees to make such payment, or cause such payment to be made, promptly upon demand made by the Company to ML & Co.; provided, however that delay by the Company in giving such demand shall in no event affect ML & Co.’s obligations under this Guarantee. This Guarantee shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of ML or otherwise, all as though such payment had not been made. ML & Co. hereby agrees that its obligations hereunder constitute a guarantee of payment when due and not of collection and that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Confirmation; the absence of any action to enforce the same; any waiver or consent by the Company concerning any provisions thereof; the rendering of any judgment against ML or any action to enforce the same; or any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor. ML covenants that this guarantee will not be discharged except by complete payment of the amounts payable under the Confirmation. This Guarantee shall continue to be effective if MX XX xxxxxx or consolidates with or into another entity, loses its separate legal identity or ceases to exist. ML & Co. shall not exercise any rights that it may acquire by way of subrogation as a result of a payment by it under this Guarantee at any time when any of the obligations of ML shall have become due and remain unpaid. Any amount paid to ML & Co. in violation of the preceding sentence shall be held for the benefit of the Company and shall forthwith be paid to the Company to be credited and applied to such obligations of ML then due and unpaid. Subject to the foregoing, upon payment of all such obligations of ML, ML & Co. shall be subrogated to the rights of the Company against ML, and the Company agrees to take at ML & Co.’s expense such steps as ML &Co. may reasonably request to implement such subrogation. ML & Co. hereby waives diligence; presentment; protest; notice of protest, acceleration, and dishonor; filing of claims with a court in the event of insolvency or bankruptcy of ML; all demands whatsoever, except as noted in the first paragraph hereof; and any right to require a proceeding first against ML. ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid obligation of ML & Co. and complies with all applicable laws. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. This Guarantee may be terminated at any time by notice by ML & Co. to the Company given in accordance with the notice provisions of the Confirmation, effective upon receipt of such notice by the Company or such later date as may be specified in such notice; provided, however, that this Guarantee shall continue in full force and effect with respect to any obligation of ML under the Confirmation arising before or after such termination. This Guarantee becomes effective concurrent with the effectiveness of the Confirmation, according to its terms.