BE EXCESSIVE
INTEREST SHALL BE APPLIED TO THE REDUCTION OF THE PRINCIPAL INDEBTEDNESS HEREOF
AND ANY OTHER AMOUNTS DUE WITH RESPECT TO THE OBLIGATIONS EVIDENCED HEREBY AND
IN THE OTHER LOAN DOCUMENTS, BUT NOT TO THE PAYMENT OF INTEREST AND IF SUCH
AMOUNT WHICH WOULD BE EXCESS INTEREST EXCEEDS THE OBLIGATIONS AND ALL OTHER NON
INTEREST INDEBTEDNESS DESCRIBED ABOVE, THEN SUCH ADDITIONAL AMOUNT SHALL BE
REFUNDED TO THE COMPANIES. IF ANY EXCESS INTEREST IN SUCH RESPECT IS PROVIDED
FOR IN THIS FINANCING AGREEMENT, OR SHALL BE ADJUDICATED TO BE SO PROVIDED, OR
IN ANY OTHER LOAN DOCUMENT OR OTHERWISE IN CONNECTION WITH THIS TRANSACTION, THE
PROVISIONS OF THIS PARAGRAPH 12.3 OF SECTION 12 SHALL GOVERN AND PREVAIL AND
NEITHER THE COMPANIES NOR ANY SUCCESSORS OR ASSIGNS OF THE COMPANIES OR ANY SUCH
PERSON (IF ANY) SHALL BE OBLIGATED TO PAY THE EXCESS AMOUNT OF SUCH INTEREST OR
ANY OTHER EXCESS SUM PAID FOR THE USE, FORBEARANCE, OR DETENTION OF SUM LOANED
HEREUNDER OR OTHERWISE. IN DETERMINING WHETHER OR NOT ALL SUMS PAID OR AGREED TO
BE PAID BY THE COMPANIES FOR THE USE, FORBEARANCE OR DETENTION OF MONEY EXCEEDS
THE MAXIMUM LEGAL RATE, THE COMPANIES, THE AGENT AND THE LENDERS SHALL TO THE
MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) TREAT ALL OBLIGATIONS AS BUT
A SINGLE EXTENSION OF CREDIT, (B) CHARACTERIZE ANY NONPRINCIPAL PAYMENT AS AN
EXPENSE, FEE OR PREMIUM RATHER THAN AS SUMS PAID OR AGREED TO BE PAID BY THE
COMPANIES FOR THE USE, FORBEARANCE OR DETENTION OF MONEY, (C) EXCLUDE VOLUNTARY
PREPAYMENTS AND THE EFFECT THEREOF, AND (D) AMORTIZE, PRORATE, ALLOCATE AND
SPREAD IN EQUAL PARTS, THE TOTAL AMOUNT OF SUCH SUMS PAID OR AGREED TO BE PAID
BY THE COMPANIES FOR THE USE, FORBEARANCE OR DETENTION OF MONEY THROUGHOUT THE
ENTIRE ACTUAL TERM OF THE OBLIGATIONS SO THAT THE INTEREST RATE IS UNIFORM
THROUGH THE ENTIRE TERM OF THE OBLIGATIONS.
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THE COMPANIES, THE AGENT AND THE LENDERS HEREBY AGREE THAT, EXCEPT FOR SECTION
346.004 THEREOF, THE PROVISIONS OF CHAPTER 346 OF THE TEXAS FINANCE CODE
(VERNON'S TEXAS CODE ANNOTATED), AS AMENDED FROM TIME TO TIME, SHALL NOT APPLY
TO THIS FINANCING AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
THE TERMS AND PROVISIONS OF THIS PARAGRAPH SHALL CONTROL AND SUPERSEDE EVERY
OTHER PROVISION HEREOF, THE LOAN DOCUMENTS AND ALL OTHER AGREEMENTS BETWEEN OR
AMONG ANY COMPANY, THE AGENT AND/OR THE LENDERS.
12.4 If any provision hereof or of any other agreement made in connection
herewith is held to be illegal or unenforceable, such provision shall be fully
severable, and the remaining provisions of the applicable agreement shall remain
in full force and effect and shall not be affected by such provision's
severance. Furthermore, in lieu of any such provision, there shall be added
automatically as a part of the applicable agreement a legal and enforceable
provision as similar in terms to the severed provision as may be possible.
12.5 EACH OF THE COMPANIES, THE AGENT AND THE LENDERS HEREBY WAIVES ANY RIGHT TO