AS A DEFENSE IN
ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR
OF ANY SUCH DOCUMENT, THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT
OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT
THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS GUARANTY OR ANY SUCH
DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO
IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
SHALL BE HEARD AND DETERMINED IN SUCH A DELAWARE STATE OR FEDERAL COURT.
THE
PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON
OF SUCH PARTIES AND, TO THE EXTENT PERMITTED BY LAW, OVER THE SUBJECT MATTER OF
SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION
WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 10 OR IN
SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT
SERVICE THEREOF.
GUARANTOR SHALL PAY ALL COSTS AND EXPENSES (INCLUDING ALL
REASONABLE ATTORNEYS' FEES) INCURRED OR PAID BY THE COMPANY IN THE SUCCESSFUL
ENFORCEMENT OF THIS GUARANTY.
(B)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS GUARANTY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY,
OR THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY.
EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
7
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.
12.
REPRESENTATIONS AND WARRANTIES.
THE GUARANTOR HEREBY REPRESENTS
AND WARRANTS TO THE COMPANY THAT (A) IT HAS ALL POWER AND AUTHORITY TO EXECUTE,
DELIVER AND PERFORM THIS GUARANTY; (B) THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS GUARANTY BY THE GUARANTOR HAS BEEN DULY AND VALIDLY AUTHORIZED AND
APPROVED BY ALL NECESSARY LIMITED LIABILITY COMPANY ACTION, AND NO OTHER
PROCEEDINGS OR ACTIONS ON THE PART OF THE GUARANTOR ARE NECESSARY THEREFOR;
(C) THIS GUARANTY HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED BY IT AND
CONSTITUTES A VALID AND LEGALLY BINDING OBLIGATION OF IT, ENFORCEABLE AGAINST
THE GUARANTOR IN ACCORDANCE WITH ITS TERMS; (D) THE EXECUTION, DELIVERY AND
PERFORMANCE BY THE GUARANTOR OF THIS GUARANTY DO NOT AND WILL NOT (I) VIOLATE
THE ORGANIZATIONAL DOCUMENTS OF THE GUARANTOR, (II) VIOLATE ANY APPLICABLE LAW
OR JUDGMENT OR (III) RESULT IN ANY VIOLATION OF, OR DEFAULT (WITH OR WITHOUT
NOTICE OR LAPSE OF TIME, OR