benefit of Noteholder and its permitted successors and assigns.
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), the Obligors, jointly and
severally, shall be liable for and shall pay to Noteholder all collection costs
and expenses incurred by Noteholder, 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 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,
7
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 3.7.
No Waiver by Noteholder.
No failure or delay on the part of
Noteholder in exercising any right, power or privilege hereunder and no course
of dealing between any Guarantor and Noteholder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
Section 3.8.
[Reserved.]
Section 3.9.
Severability.
If one or more provisions of this Guaranty are held
to be unenforceable under applicable Law, such provision(s) shall be excluded
from this Guaranty and the balance of this Guaranty shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
Section 3.10.
Construction.
This Guaranty has been freely and fairly
negotiated among the parties.
If an ambiguity or question of intent or
interpretation arises, this Guaranty will be construed as if drafted jointly