of determining the maximum rate of
interest.
Additionally, to the extent permitted by applicable law now or
hereafter in effect, Lender may, at its option and from time to time, implement
any other method of computing the maximum rate of interest under such article,
as amended, or under other applicable law by giving notice, if required, to
Borrower as provided by
8
applicable law now or hereafter in effect.
In no event shall the provisions of
Chapter 346 of the Texas Finance Code (which regulates certain revolving credit
loan accounts and revolving tri-party accounts) apply to the EW/FF Loan.
Notwithstanding anything to the contrary contained herein or in any of the EW/FF
Loan Documents, it is not the intention of Lender to accelerate the maturity of
any interest that has not accrued at the time of such acceleration or to collect
unearned interest at the time of such acceleration.
23.
Borrower, Corporate Guarantors, Individual
Guarantors and Lender hereby take notice of and agree to the following:
A.
PURSUANT TO SUBSECTION 26.02(b) OF THE
TEXAS BUSINESS AND COMMERCE CODE, A CREDIT AGREEMENT IN WHICH THE AMOUNT
INVOLVED THEREIN EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE
AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR BY THAT PARTY'S
AUTHORIZED REPRESENTATIVE.
B.
PURSUANT TO SUBSECTION 26.02(c) OF THE
TEXAS BUSINESS AND COMMERCE CODE, THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO
THE LOAN DOCUMENTS SHALL BE DETERMINED SOLELY FROM THE LOAN DOCUMENTS, AND ANY
PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE
LOAN DOCUMENTS.
C.
THE NOTE, THE LOAN AGREEMENT, THE
SECURITY AGREEMENT, AND THE OTHER LOAN DOCUMENTS, EACH AS AMENDED HEREBY, AND
THIS AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES THERETO AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES THERETO.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
24.
WAIVER OF JURY TRIAL.
THE PARTIES HERETO
EACH ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT
THAT IT MAY BE WAIVED.
EACH PARTY HERETO, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT, WITH COUNSEL OF THEIR CHOICE, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS OR ANY COURSE OF CONDUCT,
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTION OF ANY OF THEM.
THESE
PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR
RELINQUISHED BY ANY PARTY HERETO, EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY
EACH OF THEM.
25.
Subordination.
In accordance with the terms
of the Intercreditor Agreement, Lender's liens and security interests in the
Collateral are subordinate to CIT's liens and security interests in the
Collateral.
The Intercreditor Agreement contains other agreements between
Lender and CIT concerning each party's rights and priorities as such rights and
priorities relate