by Holder and each Guarantor.
Section 3.2.
Successors and Assigns.
No Guarantor may assign, transfer or
otherwise convey its rights or obligations hereunder unless Holder has granted
its prior written consent and any such purported assignment, transfer or
conveyance by any Guarantor without obtaining such prior written consent shall
be null and void ab initio.
Holder may not assign this Guaranty and any or all
of its rights hereunder, unless such assignment is to an Affiliate of Holder and
the Holder complies with Section 2.4 of the Note.
This Guaranty shall apply to
and inure to the benefit of Holder and its permitted successors and assigns.
Without limiting the generality of the immediately preceding sentence, Holder
may assign any Guaranteed Obligation held by such Holder or any portion thereof,
and Holder may assign such Holder's rights or any portion thereof under this
Guaranty, in each case, in connection with an assignment of the Guaranty to an
Affiliate of Holder, but only to the extent the Holder complies with Section 2.4
of the Note, and such Affiliate of Holder shall thereupon become entitled to all
of the benefits in respect thereof granted to such Holder hereunder.
Section 3.3.
Defenses.
Except as expressly set forth herein, the obligations
of each Guarantor under this Guaranty shall not be subject to reduction,
limitation, impairment, termination, defense (other than a defense of payment or
performance), set-off, counterclaim or recoupment for any reason.
Section 3.4.
Attorneys' and Collection Fees.
Each party will bear its own fees
and expenses incurred in connection with the preparation and execution of this
Guaranty.
In the event this Guaranty shall not be paid when due and payable
(whether upon demand, by acceleration or otherwise), subject to the proviso in
Section 2.1(a), the Obligors, jointly and severally, shall be liable for and
shall pay to Holder all collection costs and expenses incurred by Holder,
including reasonable attorney's fees.
Section 3.5.
Governing Law.
THIS GUARANTY AND THE VALIDITY AND ENFORCEABILITY
HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS.
Section 3.6.
Waivers.
(a)
EACH GUARANTOR WAIVES DEMAND, PRESENTMENT,
NOTICE OF DISHONOR, NOTICE OF INTENT TO DEMAND OR ACCELERATE PAYMENT HEREOF,
NOTICE OF ACCELERATION, DILIGENCE IN COLLECTING, GRACE, NOTICE, AND PROTEST, AND
AGREES TO ONE OR MORE EXTENSIONS FOR ANY PERIOD OR PERIODS OF TIME AND PARTIAL
PAYMENTS, BEFORE OR AFTER MATURITY, WITHOUT PREJUDICE TO ANY PARTY.
(b)
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
7
RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY. EACH PARTY HERETO (A) CERTIFIES THAT NO AGENT, ATTORNEY, REPRESENTATIVE
OR ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF
LITIGATION, AND (B)