CONTINUE
TO PAY INTEREST TO SUCH LENDER AT THE MAXIMUM LAWFUL RATE UNTIL SUCH TIME AS THE
TOTAL INTEREST RECEIVED BY SUCH LENDER IN RESPECT OF THE OBLIGATIONS HELD BY IT
IS EQUAL TO THE TOTAL INTEREST WHICH SUCH LENDER WOULD HAVE RECEIVED HAD
INTEREST ON ALL OBLIGATIONS HELD
75
BY SUCH LENDER (BUT FOR THE OPERATION OF THIS SECTION 9.17) ACCRUED AT THE RATE
OTHERWISE APPLICABLE UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
THEREAFTER, INTEREST PAYABLE TO SUCH LENDER IN RESPECT OF THE OBLIGATIONS HELD
BY IT SHALL ACCRUE AT THE APPLICABLE RATE SET FORTH IN THIS AGREEMENT OR OTHER
LOAN DOCUMENTS UNLESS AND UNTIL SUCH RATE AGAIN EXCEEDS THE MAXIMUM LAWFUL RATE,
IN WHICH EVENT THIS SECTION 9.17 SHALL AGAIN APPLY.
IN NO EVENT, SHALL THE
TOTAL INTEREST RECEIVED BY ANY LENDER PURSUANT TO THE TERMS HEREOF EXCEED THE
AMOUNT WHICH SUCH LENDER COULD LAWFULLY HAVE RECEIVED HAD INTEREST BEEN
CALCULATED FOR THE FULL TERM OF THIS AGREEMENT AT THE MAXIMUM LAWFUL RATE.
IN
THE EVENT THAT THE MAXIMUM LAWFUL RATE IS CALCULATED PURSUANT TO THIS
SECTION 9.17, (A) IF REQUIRED BY APPLICABLE LAW, SUCH INTEREST SHALL BE
CALCULATED AT A DAILY RATE EQUAL TO THE MAXIMUM LAWFUL RATE DIVIDED BY THE
NUMBER OF DAYS IN THE YEAR IN WHICH SUCH CALCULATION IS MADE, AND (B) IF
PERMITTED BY APPLICABLE LAW, THE BORROWERS AND SUCH LENDER SHALL
(I) CHARACTERIZE ANY NON-PRINCIPAL PAYMENT AS AN EXPENSE, FEE OR PREMIUM RATHER
THAN AS INTEREST, (II) EXCLUDE VOLUNTARY PREPAYMENTS AND THE EFFECT THEREOF, AND
(III) AMORTIZE, PRORATE, ALLOCATE AND SPREAD IN EQUAL OR UNEQUAL PARTS THE TOTAL
AMOUNT OF INTEREST THROUGHOUT THE ENTIRE CONTEMPLATED TERM OF THE LOANS SO THAT
INTEREST FOR THE ENTIRE TERM OF THE LOANS SHALL NOT EXCEED THE MAXIMUM LAWFUL
RATE.
IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION, NOTWITHSTANDING THE
PROVISIONS OF THIS SECTION 9.17 SHALL MAKE A FINAL DETERMINATION THAT SUCH
LENDER HAS RECEIVED INTEREST IN EXCESS OF THE MAXIMUM LAWFUL RATE, SUCH LENDER
SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROMPTLY APPLY SUCH EXCESS,
FIRST TO ANY INTEREST DUE AND OUTSTANDING UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS, SECOND TO ANY PRINCIPAL DUE AND PAYABLE UNDER THIS AGREEMENT AND
THE NOTES, THIRD TO THE REMAINING PRINCIPAL AMOUNT OF THE NOTES AND FOURTH TO
OTHER UNPAID OBLIGATIONS HELD BY SUCH LENDER, AND THEREAFTER SHALL REFUND ANY
EXCESS TO THE BORROWERS OR AS A COURT OF COMPETENT JURISDICTION MAY OTHERWISE
ORDER.
SECTION 9.18
TM SERVICES.
TO THE EXTENT THAT AT ANY TIME OR FROM TIME TO
TIME HEREAFTER AGENT OR LENDERS ARRANGE FOR, OR GIVE ASSURANCES ON BORROWERS'
BEHALF IN REGARD TO, ANY TM SERVICES (AS HEREINAFTER DEFINED), BORROWERS
ACKNOWLEDGE AND AGREE THAT:
(I) NEITHER AGENT NOR ANY LENDER SHALL HAVE ANY
DUTY, OBLIGATION OR LIABILITY WHATSOEVER TO ANY BORROWER IN RESPECT THEREOF,
INCLUDING, WITHOUT LIMITATION, AS TO (A) THEIR INITIATION, CONTINUATION,
SUSPENSION OR TERMINATION, (B) ANY ACTIONS (OR OMISSIONS) OF THE PARTY(IES)
PROVIDING SUCH SERVICES OR ANY OTHER PERSON, OR